Perkins v. Best

Pinney, J. 1. The contract between the plaintiffs and Darwin for the sale of the logs on sections 3 and 33 was upon the condition that the title thereto should be in the plaintiffs “ until said logs are paid for in full,” and it provided that Darwin should have the right to enter upon and •cross over said lands, “ for the purpose of removing said logs,” and that he might “ remove said logs on or before the 1st day of April, 1895.” The contract contemplated that Darwin was to have possession' of the logs. Accordingly [174] he proceeded to cut and draw the logs, and bank them on Black river. It may be conceded that the contract was within the statute (E. S. sec. 2317) providing that “ no contract for the sale of personal property, by the terms of which the title is to remain in the vendor, and the possession in the vendee, until the purchase price is paid, or other conditions of the sale are complied with, shall be valid as against any other person than the parties thereto, and those having notice thereof \ unless such contract shall be in writing, and subscribed by the parties, and the same, or a copy thereof, be filed ” in the office of the clerk of the proper town or city, as therein provided. It affected hemlock logs then peeled, and those that might be peeled before September 1, 1894. But it is not material to determine the question suggested, for it is entirely clear that the defendant had notice, within the meaning of the statute, of the contract between the plaintiffs and Darwin, and therefore he could get no better right or title to the logs than Darwin, his mortgagor, had. The evidence tended to show, and it was not denied, that the defendant knew that Darwin was getting the peeled logs from the plaintiffs, and his mortgages described the lands whereon they were situate. The recitals on the face of the mortgages under which he claims — in particular, the first one in date — were sufficient notice, within the statute, of the contract between the plaintiffs and Darwin. The first recited on its face that the property was subject to “ a claim of forty cents per thousand feet, in favor of A. J. Perkins & Co., of Medford, Wisconsin.” Facts and circumstances sufficient to put a reasonable and prudent man on inquiry of a prior lien or claim are notice thereof to a purchaser or incumbrancer, if such inquiry, when prosecuted with reasonable diligence, would lead him to a knowledge of the real facts. Eecitals in title deeds or instruments under which a party claims are considered as notice to the party receiving the same, equally in respect to personal as to real [175] estate. Rindskopf v. Myers, 87 Wis. 80-87; Wade, Notice, §§ 332-334. In Reichert v. Neuser, 93 Wis. 513, it was held that a recital in a deed, at the end of a covenant against in-cumbrances, “ except a certain mortgage for $900,” was notice to the grantee as a purchaser, and all persons claiming under him, of such unrecorded mortgage. This recital is quite like the one in the second mortgage in question, and it was objected there, as here, that the recital in that case was vague and indefinite; but it was held sufficient notice of the existence of the mortgage, and that, where a party could not make out his title without an instrument which by its recitals will lead him to the fact with notice of which he is to be charged, such recital is sufficient notice thereof. It is of no avail to urge that the party did not read the recital. He cannot be allowed to allege ignorance of what appears upon the face of the instrument under which alone he claims to make title. Pringle v. Dunn, 37 Wis. 450-456; Bennett v. Keehn, 67 Wis. 154; and cases cited in Reichert v. Neuser, supra. That the defendant, Best, must be held to have taken his mortgages with notice of the contract between the plaintiffs and Darwin, in view of the facts stated, is extremely plain (Bank of Farmington v. Ellis, 30 Minn. 270; Dyer v. Thorstad, 35 Minn. 534; Kelsey v. Kendall, 48 Vt. 24); and as there was no evidence given or offered to show that the plaintiffs had been paid their debt, and no offer or attempt was made by the defendant to redeem from their claim, his defense therefore wholly failed. 2. For the reasons last stated, it was not error to exclude the evidence offered that Darwin had made another payment on the contract, or one of $700, in addition to the $900 admitted. He did not offer to show that the sum due on it had been paid. The real question litigated was as to the validity of the claim of the plaintiffs. 3. The plaintiffs had rightly taken possession of the logs, put them in the river, and driven them down to near [176] La Crosse, where they had been moored or boomed; and Darwin had theretofore consented that the mark upon them should be recorded in the name of the plaintiffs. The plaintiffs had all the possession of the logs of which such property is usually susceptible. The taking possession of them thereafter by defendant was a tortious act, for which trespass would lie, and replevin might therefore be maintained for them without a previous demand. Gallagher v. Bishop, 15 Wis. 276; Pranke v. Herman, 76 Wis. 428; Starke v. Paine, 85 Wis. 637. It was clear that possession had been tor-.tiously acquired by the defendant. For these reasons there is no error in the proceedings. By the Court.— The judgment of the circuit court is af-Rrmed.