Schneider v. Kraby

Maeshall, J. Sec. 2313, R. S., provides that “ no mortgage of personal property shall be valid against any other person than the parties thereto, unless the possession of the mortgaged property be delivered to-’and retained by the-mortgagee, or unless the mortgage or a copy thereof be filed as provided by law.” It is well settled that such possession must be actual, open, unequivocal, exclusive, and continuous. Menzies v. Dodd, 19 Wis. 343; Manufacturers' Bank v. Rugee, 59 Wis. 221. Joint possession by the mortgagor and mortgagee does not satisfy the requisites of the statute. Grant v. Lewis, 14 Wis. 487; Osen v. Sherman, 27 Wis. 501. Rut the-rule does not go so far as to defeat the title of the mortgagee522 if he takes actual possession and control of the property, and so continues, merely because he employs the mortgagor, or the former employees of the mortgagor, to assist in converting such property into money. Hage v. Campbell, 78 Wis. 572. When the validity of the mortgage turns, as in this case, on whether the mortgagee took possession of the property under it and continued in such possession as the statute requires, if the evidence and reasonable inferences therefrom •are not all one way, the question is one exclusively for the jury, under proper instructions. Here the mortgaged property was a merchant' tailor’s stock. There is evidence tending to show that plaintiff did not know anything about how to handle and dispose of such goods; that he took possession of the goods and caused an inventory thereof to be made; that it required a tailor and a clerk who understood the business to conduct it and convert the property into money; that after the inventory was taken plaintiff employed one of the mortgagors, who was a tailor, and the husband of the other mortgagor, who was a ■competent clerk, both of whom had formerly worked in the .■store, to enable him to carry on the business and realize on the property; that both of the employees thereafter performed substantially the same kind of work as theretofore; that new books were opened; that plaintiff was in the store more or less every day, received the proceeds of sales, and paid the employees; and that there was no change in the ■sign on the store.' Under such evidence and the law pertaining to the subject, obviously the questions of change of possession to the mortgagee, and the continuance of such possession, were for the jury. The fact that one of the mortgagors and the husband of the other, who formerly conducted the store, were employed by plaintiff, was not conclusive in defendant’s favor on the question at issue, as decided in Hage v. Campbell, supra. The fact that the sign was not changed was evidence proper only for the consid523 oration of the jury in connection with all the other evidence in the case. It follows that the motion for a nonsuit was properly denied, and that we cannot say there was no evidence to sustain the verdict. There appears to he no reversible error in the record. By the Court.— The judgment of the circuit court is affirmed.