Mowry v. White

Chattel Mortgage— Onlumberin Wolf River &c.; place of filing renewal affidavit— On fombe)' cut and to be cut; how far valid — Intermixture of lumber previously and subsequently cut, effect of. — Attachment, pending a petition minsolvmcy. 1. Under ch. 213, Laws of 1860, it was not necessary that the copy of a mortgage upon lumber or timber in the Wolf river or its tributaries, which is required by that act to be filed in the office of the clerk of the city of Oshkosh, to make such mortgage valid against any other person than the parties thereto, should have attached to it the affidavit described in section 5, chapter 45, R. S., in order to preserve the lien thereof after the expiration of a year; but it is sufficient that such affidavit is annexed and filed in the office of the clerk of the town where the mortgagor resides. 2. A mortgage of “ all that certain lot of pine logs cut and to be cut ” by the mortgagor during the then current lumbering season, held valid as to logs cut before its execution and delivery, but not as to those cut afterwards. 8. The mortgagee did not acquire any interest in the logs cut afterwards, by reason of their baying been intermixed by the mortgagor with those cut before the mortgage was executed. His assent to the intermixture must be assumed from his having stipulated in the mortgage for a lien upon both classes of logs. 4. In a controversy between such mortgagee and a creditor of the mortgagor who had attached the logs, as well those covered by the mortgage as those cut after its execution, it appearing that they had been intermixed with the assent of the mortgagee, and no difference in quality or value being shown : Held, that the attachment was valid as to such a proportion or quantity of the logs as was cut after the execution of the mortgage. 5. The mere pendency of a petition in insolvency, does not debar the creditors of the insolvent debtor from pursuing the ordinary remedies against him for the collection of their debts; and among others, the remedy by attachment. 6. It may be that the peudency of such an application may afford ground for other creditors, or even the debtor himself, to obtain a stay of proceedings in the attachment suit, and afterwards to have the property transferred to the assignee when appointed. But this question did not arise in the present case.

APPEAL from the Circuit Court for Winnebago County. Replevin for 100,000 feet of logs, held by defendant, as sheriff, by virtue of an attachment levied thereon September 28, 1865, at the suit of one Haskin, as the property of one Elbridge Smith. Plaintiff put in evidence: 1. A contract between himself and said Smith, October 22, 1863,'by which the latter agreed to cut and delivea.’ to the former during 1864 and 1865, in the village of Menasha, 420,000 feet of pine logs, to be cut in S. 5, T. 26, R. 15, &c.; and plaintiff agreed to advance certain amounts thereon before delivery, and pay the balance in certain installments after the logs were delivered; and Smith agreed to execute to plaintiff, at any time on his request, a mortgage of all the logs then cut or to be cut, to secure the advances so made or to be made. 2. A mortgage from Smith to plaintiff, filed with the town clerk of the town of Menasha (where Smith resided), February 11,1864; and an affidavit of renewal, in due form, filed and attached to said mortgage, February 10, 1865. The mortgage was of “ all that certain lot of pine logs, cut and to be cut," by said Smith, and which were or were to be “ hauled into Mill Creek and the Embarrass river, in Shawano county,” &c.; with which was also offered an affidavit of renewal filed in the office of the city clerk of Oshkosh, December 18, .1864. Defendant objected to this evidence, on the ground that the mortgage had not been renewed according to the statute, and that it was upon property not in existence at the time of its execution ; but the objection was overruled. 3. A release by Smith to plaintiff, under date October 2d, 1865, of all the interest of the former in the logs covered by the terms of the mortgage. 4. A release by Weed, Gumaer & Co., to plaintiff, for a valuable consideration, of their right and title to so many of said logs as had been cut by Smith on their land. The oral testimony showed that these, were cut without their consent, and amounted to 60,000 feet. Smith also testified that three-fourths of the logs were cut before the mortgage was delivered to plaintiff. Eor the defendant, Haskin testified that at the time of suing out the writ of attachment against the property of Smith, he was a creditor of Smith’s to the amount stated in the affidavit attached to the writ (about $700); and that the attachment suit was still pending. Defendant also put in evidence the summons and writ in the attachment suit. The plaintiff then put in evidence (against defendant’s objection) the “ record of .proceedings and final judgment of discharge in the circuit court for Winnebago and Bond du Lac counties, in the matter of the petition of Elbridge Smith to be discharged from his debts as an insolvent debtor; which proceeding was commenced in January, 1863also a transcript of a judgment entered under said insolvency proceedings, in favor of Haskin against Smith, for'an indebtedness of $125, and the discharge of the same by order of court. Smith was also permitted to testify (against objection) that the third cause of action set out in Haskin’s complaint in the attachment suit, was the same as that mentioned in his schedule of indebtedness as existing in Haskin’s favor; and that he was not indebted to Haskin on any other cause of action. The court instructed the jury that creditors of an insolvent, during the pendency of proceedings in insolvency, cannot obtain a priority of claim over other creditors, by attachment; and that if Smith was the owner of the property, and conveyed it to the plaintiff before the commencement of the suit, whether by mortgage or otherwise, plaintiff was entitled to a verdict. The court refused instructions asked by defendant, to the effect, 1. That the mortgage from Smith to plaintiff, because it had not been renewed according to the statute, and because it was upon property subsequently to be acquired, was void as to creditors of Smith and subsequent bona fide purchasers. 2. That the discharge of an insolvent effects only the indebtedness set forth in the schedule attached to his petition. Verdict for tbe plaintiff; new trial denied; and defendant appealed from a judgment on tbe verdict. argued that under cb. 213, Laws of 1860 (wbicb provides that chattel mortgages on sucb property as tbstt in dispute, shall be filed in the office of the city clerk of Oshkosh), it was necessary, in order to con-tiue the mortgage in force, that the affidavit for a renewal (sec. 5, cb. 45, R. S.) should be filed at Oshkosh, within thirty days next preceding the expiration of a year from .the first filing. Newman v. Tymeson, 12 Wis., 448. 2. The mortgagee acquired no interest, because the property, or a part of it, was not in existence when the mortgage was executed. Oomstoch v. Scales, 7 Wis., 159; Ghynoiueth v. Tenney, 10 Wis., 398. 3.- The discharge of an insolvent debtor only discharges the indebtedness set forth in his schedule. R. S., ch. 161, sec. 23; Chitty on Con., 213 ; Leonard v. Baker, 15 M. & W., 202; Tyers v. Stunt, 7 Scott, 349; Baker v. Sydee, 7 Taunt., 179. 4. Such discharge is a personal privilege of the debtor, except as to his bail, indorsers, assignees and sureties; and the plaintiff cannot take advantage of it in this case. 1. Plaintiff had a valid claim under the mortgage to 340,-000 feet, which was cut before the delivery of the mortgage to him. The mortgagor, by indiscriminately mixing logs cut afterwards with those mortgaged, could not defeat plaintiff's claim ; and if he, or those under him, claim the logs cut after-wards, they must identify them. Jenkins v. Steanka, 19 Wis., 126; Hart v. Ten Eyck, 2 Johns., 108; 1 Strobh., 505 ; 15 Ves., 432; 2 W. & B., 265. 2. Plaintiff had a good title under Smith’s release of October 2, 1865. The attachment was not a lien as against plaintiff, except upon proof of a valid indebtedness of Smith to Haskin ; but Smith had been discharged from this debt in the insolvent proceedings. The attachment was not authorized by law. Sexton v. Mann, 15 Wis., 162. Haskin was bound bj tbe judgment, as to tbe amount of Smith’s indebtedness to bim. Small v. Graves, 7 Barb., 576; Ayres v. Scribner, 17 Wend., 407; People v. Strylcer, 24 Barb., 649 ; Stanton v. Ellis, 2 Kern., 575.