Gore v. Brucker

Cassoday, C. J. Each of the chattel mortgages mentioned contained the usual clause to the effect that, if the party of the second part should at any time deem himself insecure, then it should be lawful, and the mortgagor thereby expressly authorized the second party, his heirs or assigns, or his authorized agent, to take the property, and hold, sell, or dispose of the same and all equity of redemption therein, at public auction or private sale, with or without notice, and on such terms as he might see fit, retaining the amount due and interest and expenses incurred, returning the surplus money, if any there should be, to the mortgagor, his heirs or assigns. Under such provisions in the two mortgages, Lapidus, as assignee of the mortgages, by Bruoker, as his 68 authorized agent, took possession of a portion of the property described in the mortgages, respectively, prior to the time when the garnishee summons was served upon Brucker, as mentioned. Undoubtedly, Lapidus had the legal right to so take possession as against the mortgagor, Sklute. Gage v. Wayland, 67 Wis. 566; Hill v. Merriman, 72 Wis. 483. This court has repeatedly held, in effect, that such mortgages and the assignment thereof vested the legal title to the property therein described, and the right to take possession thereof, in Lapidus, as against Sklute, subject only to his right to redeem and have any surplus on the sale of the property. Id. The question recurs whether Lapidus can properly be divested of such legal title and possession in a proceeding to which he is not a party by such garnishment of Bruoker, in a suit against Sklute. The conclusions of the trial court are manifestly based upon the theory that Bruoker, as such mere agent of Lapidus, was not subject to such garnishment,— especially as he immediately relinquished such agency and surrendered such custody. True, the statute provides, in effect, that, from the time of the service of the summons, the garnishee stands “ liable to the plaintiff to the amount of the property, moneys, credits and effects in his possession, or under his control, belonging to the defendant;” and that such property, moneys, credits, and effects embrace those “held by a conveyance, or title, void as to creditors of the defendant.” S. & B. Ann. Stats, sec. 2768; La Crosse Nat. Bank v. Wilson, 74 Wis. 398, and cases there cited; McCown v. Russell, 84 Wis. 122. But this court has repeatedly held, in effect, that “ a garnishee is not liable as such for property in his possession unless the right of the principal defendant thereto is absolute at the time of the service of the garnishee process; nor for the amount of a debt if its becoming due depends upon a contingency.” Edwards v. Roepke, 74 Wis. 571, and cases there cited; Spitz 69 v. Tripp, 86 Wis. 25. Certainly, Sklute had no such absolute right to the property or the possession thereof at the time the garnishee summons was served upon Brucker. Eollowing the well-established rule .that courts are bound to give a reasonable construction to a statute, Mr. Justice Taylor, in Bates v. C., M. & St. P. R. Co. 60 Wis. 307, quotes approvingly from a Massachusetts case [Staniels v. Raymond, 4 Cush. 314] this language: “We think it never could have been the intention of the legislature that the mere possession of propeyty by a party having no claim to hold it against the owner should render him liable as trustee, and thereby subject him to trouble and expense in answering to a claim in which he has no interest. Such a construction of the statute would be prejudicial in very many cases, and cannot be admitted.” The same language was quoted approvingly by Mr. Justice Pinney in the late case of Gleason v. South Milwaukee Nat. Bank, 89 Wis. 536. See, also, Rood, Garnishment, § 52, and the following cases there cited: Nat. U. Bank v. Brainerd, 65 Vt. 291; Case v. Dewey, 55 Mich. 116; Smalley v. Miller, 71 Iowa, 90. To hold Brucker under such circumstances would be to compel him, without indemnity, to take the responsibility of determining at his peril whether the chattel mortgages were void or valid. The plaintiff was at perfect liberty to attach the property so in the custody of Brucker, since the same was open and tangible, and, in fact, inspected by the plaintiff’s general manager. Smith v. Weeks, 60 Wis. 94, 103. Had the plaintiff so attached, Lapidus would have had an opportunity to assert his right as mortgagee, and to have the same determined in a proper form. By the Court.— The judgment of the circuit courtis af-. firmed.