Schmidt v. DuBois

Rosenberry, C. J. On behalf of the defendants it is argued that the plaintiffs should have intervened in the foreclosure action. Inasmuch as the entire matter is here upon the merits, it is considered that the questions raised should be disposed of. On behalf of the plaintiffs it is argued that the trial court was of the opinion that the buildings could not properly be the subject of a chattel mortgage and it therefore erroneously concluded that the lien of plaintiffs’ mortgage was subordinate to that of the defendants’ mortgages. We find no warrant for that argument either in the findings of fact and conclusions of law or in the written opinion filed by the court. The court considered, and properly, that as between the defendants Carrol and their mortgagees, DuBois [633] and the Bank of Baraboo, the buildings in question were fixtures under the rule laid down in Huebschmann v. McHenry, 29 Wis. 655, and Taylor v. Collins, 51 Wis. 123, 8 N. W. 22. The buildings being so annexed to the soil as to constitute a part of the realty as between the parties to the chattel mortgage, they might be severed, but as to all others who dealt with them the buildings remained a part of the realty. The court found, and the finding is abundantly supported by the evidence, that neither the defendant DuBois nor the defendant Bank of Baraboo had any notice, actual or constructive, of the existence of the chattel mortgage. These buildings being as to all persons except those who were parties to the chattel mortgage or had notice thereof real property under the statute relating to the effect of a prior recording in the office of the register of deeds, the liens of the mortgages executed to the defendant DuBois and the defendant Bank of Baraboo were clearly superior to the fieri of plaintiffs’ chattel mortgage. By the Court. — Judgment affirmed.