Adler v. Godfrey

Marshall, J. Counsel for appellant contends that Adler’s mortgage did not vest in him any interest because the automobile was not in Ure’s possession when the instrument was made. To support that counsel invoke the principle that, in the circumstances assumed, there is no implied warranty of title. The infirmity is in that the premises do not fit this case; so the reasoning and conclusions do not. This is not a case resting on warranty of title, nor even one of mortgaging after-acquired property. At the best for respondent, Ure had an equitable right to the property as soon as he obtained the memorandum on June 2, 1908. It may be the parties contemplated that, later, some more formal instrument would be made. That it was intended the memorandum, -in practical effect and to all appearances, should evidence ownership of the property in Ure, is evident because the paper, on its face, indicates that Godfrey purposes having the garage keeper recognize the former as having the right to take the automobile. Time was given Urato pay the balance, and it was stipulated that Ure should, in the meantime, afford Godfrey a free ride. That clearly indicates mutual intention that Ure should, from the date of the paper, be considered the actual or constructive possessor of the property. Certainly if the first paper did not clothe him with the full, it did with the equitable, ownership and am190 pie capacity to make a valid’chattel mortgage, good as against any one not having a superior lien, to the knowledge, actual or constructive, of the mortgagee. The further point is made that the mortgage was ineffective as security, because it did not contain a correct description of the machine. Counsel make the mistake, not infrequently observed, of citing foreign cases on a simple matter which has been treated in this court time and again. A single decision in our own jurisdiction, in respect to a particular matter, which has stood as the law of the state for a long time, is better than a large number of foreign adjudications which are more or less in conflict therewith. Mere inaccuracies in the description of property covered ip. a chattel mortgage are not fatal, if the subject is so described that it can be readily identified by the exercise of ordinary care, and even by the aid of extrinsic evidence, in case there is sufficient in the writing to put one, acting reasonably, on inquiry. Newman v. Tymeson, 13 Wis. 172; Weber v. Illing, 66 Wis. 79, 27 N. W. 834; Harris v. Kennedy, 48 Wis. 500, 4 N. W. 651; Knapp, Stout & Co. Co. v. Deitz, 64 Wis. 31, 24 N. W. 471. An examination of the cited cases will show how useless it is to refer to authority elsewhere in support of the idea that strict accuracy of description is essential to the validity of a chattel mortgage. The rule of reasonable certainty was early adopted, and also the rule that ambiguity which arises by attempting to apply the description to the thing reasonably supposed to have been intended, may be helped out by extrinsic evidence. In this case, Ure had but one automobile when he made the paper to Adler. The identification number thereof was “Serial No. 17003,” and it was a Marmon car. That it was the machine which Ure intended to give, and Adler intended to take, security on, there is no manner of doubt. Godfrey was not misled in any way. He must be held to have had [191] notice of the contents of the paper on file. If that were not sufficient on mere inspection to satisfy him the particular machine was intended, it was certainly enough to put him on such inquiry as would readily have cleared up all doubt about the matter. A third claim is made that Godfrey became subrogated to the garage keeper’s lien for storage and entitled to possession of the property on that account. How Godfrey by stepping into the shoes of-'Ure and paying off the garage bill could acquire a right superior to the paramount title in Adler, is not perceived. The fact that a mortgagor is permitted to remain in possession of the mortgaged property, in the absence of a statute providing otherwise, affords him no implied authority to create a lien thereon for storage superior to the right of the mortgagee. If the garage keeper had no right of lien as against Adler, obviously, Godfrey did not obtain any by paying the storage claim. He obtained thereby just what the garage keeper had, — no more and no less. That was a lien as against Ure. Counsel assumes that the lien of the garage keeper took precedence of Adler’s lien, because the latter had knowledge that Ure was keeping the machine in a public garage. The law is otherwise. Jones, Chat. Mortg. § 472; 7 Cyc. 39, sub. 5. The further point is made that the chattel mortgage was, in form, a bill of sale, reserving to Mr. Ure the right of possession to enable him to use the machine as a demonstrator, and, therefore, Adler had no right to possession when the action was commenced. Little time need be spent with that. The idea that because the bill of sale did not give Adler, expressly, the right to preserve his security by taking possession of the machine when necessary therefor, as in this case, is quite novel and is unsound. When Ure abandoned the use for which he was permitted to possess the machine, omitted to pay the garage keeper, and some one had to interfere in order to have the property even housed, his right to posses [192] sion was, necessarily, waived in favor of tbe owner of tbe paramount claim. Godfrey did not acquire any better right than Ure by interfering to protect bis own interests. By common law and common sense, if one person bas tbe title to a chattel and, contingently, to possession.thereof, and tbe latter right is, subject to tbe contingency, in another, especially when such other is in duty bound to care for the property in the meantime, and he abandons his right, the chattel does not become a thing which a stranger may seize upon, but such right lapses or merges in the paramount right. The mere fact that there was no express stipulation as regards Adler taking possession, is unimportant. If a chattel mortgage is given in the form of a bill of sale, or in the ordinary mortgage form, without anything being said about possession pending maturity of the debt, in the absence of a statutory regulation to the contrary, the mortgagee may exercise his own discretion as to taking possession of the property. Tenney v. State Bank, 20 Wis. 152; Appleton I. Co. v. British Am. A. Co. 46 Wis. 23, 1 N. W. 9, 50 N. W. 1100. Obviously, when the mortgagor is permitted to retain possession for a particular purpose only, and abandons such purpose and, particularly, the property itself, the holder of the legal title may take such property. There is no other question raised by appellant which seems worthy of mention. By the Court. — The judgment is affirmed.