Follett v. Heath
Wisconsin Supreme Court
APPEAL from the Circuit Court for Winnebago County. Replevin, commenced in February, 1862. The answer justified the taking of the property by virtue of a chattel mortgage, which was given by the plaintiff with the intention to secure his note for $660.11, dated March 15th, 1859, payable thirty days after date; but set out in hceo verba the mortgage, which describes the note secured by it as being for $530, dated November 16, 1858, and payable in one year after date; and…
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APPEAL from the Circuit Court for Winnebago County. Replevin, commenced in February, 1862. The answer justified the taking of the property by virtue of a chattel mortgage, which was given by the plaintiff with the intention to secure his note for $660.11, dated March 15th, 1859, payable thirty days after date; but set out in hceo verba the mortgage, which describes the note secured by it as being for $530, dated November 16, 1858, and payable in one year after date; and alleged that the misdescription of said note in the mortgage arose from the fact that the note was not present at the time…
1Opinion of the Court
By the Gourt,
Paine, J.
This case presents the question whether, where a chattel mortgage gives a totally false description of the note it was intended to secure, through mistake in drawing it, a seizure of the property mortgaged can be justified in an action at law, without reforming the instrument. We think it cannot. It is true that equitable defenses may now be interposed. But the facts here sought to be shown constitute not an equitable but a legal defense, if they can once be established. The difficulty is in getting at the proof. The papers having been made wrong by mistake, the parties…
2Cited by8 opinions
- Hammel v. Queen Insurance Co. of London & LiverpoolWisconsin Supreme Court · 1880
- Paine v. BentonWisconsin Supreme Court · 1873
- Thompson v. CobbTexas Supreme Court · 1902
- Clark v. HymanSupreme Court of Iowa · 1880
- Weber v. IllingWisconsin Supreme Court · 1886
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