98 Mich. 117 | Mich. | 1893
The plaintiff’s son, being engaged in a business which he found unprofitable, so told the plaintiff, and agreed to let him have the property in dispute, to apply upon an indebtedness due him for money lent to and paid for the son to the amount of several hundred dollars. This talk occurred upon Sunday, and, in accordance with it, the plaintiff on the next day went to the store, and proceeded to remove the property therein. On Tuesday
It is contended by appellant:
1.. That the plaintiff took no title under the Sunday arrangement, for the reason that it was void, and that the
2. That the bill of sale on October 5 was void as against ■creditors, because not accompanied by delivery of the property.
3. That the defendant came lawfully into possession of the property under his first writ, and that a demand was necessary before replevin could be maintained.
4. That the bill of sale was invalid, being made with the intent to hinder, delay, and defraud creditors.
5. That the court erroneously instructed the jury that the burden of proof was upon the defendant to show fraud.
6. That he refused to instruct that, if the plaintiff was a creditor of the son, he could not recover if the bill of sale was made with the intention of defrauding other creditors.
It is undeniable that the negotiations that occurred upon Sunday were invalid, and passed no title to the plaintiff. Our attention is called to no evidence that shows a sale of the property to the plaintiff before September 29. The evidence shows that without further talk than that of Sunday the plaintiff proceeded to remove the property, and that his son saw him doing so without objection. It is settled law in Michigan that a Sunday contract is a prohibited transaction, the illegality of which forbids it being made a sale by a mere delivery later. The delivery must be accompanied by circumstances which in themselves supply the necessary elements of a contract, without depending upon the Sunday transaction for any essential. Tucker v. Mowrey, 12 Mich. 378; Winfield v. Dodge, 45 Id. 355; Benedict v. Bachelder, 24 Id. 425; Allen v. Daffie, 43 Id. 1; Arbuckle v. Reaume, 96 Id. 243; Winchell v. Carey, 115 Mass. 560. It being settled that there is no proof of a sale .before September 29, it follows that the court should not '.have left that question to the jury, as he did, by giving the plaintiffs tenth request.
No demand was necessary. The taking and detention under the first writ of attachment were tortious, and while the writ, if good upon its face, might have protected the officer from personal responsibility, he cannot base a right to possession upon it if the writ was founded upon a void affidavit. Beach v. Botsford, 1 Doug. 199; Le Roy v. City Railway, 18 Mich. 233; Gidday v. Witherspoon, 35 Id. 368; Adams v. Hubbard, 30 Id. 104.
“If James Aspell, however, so bought and had such possession before September 29, 1891, then, even though Thomas Aspell intended in making the sale to cheat and defraud other creditors, that does not afford a defense to the defendant, unless plaintiff
See Hauser v. Beaty, 93 Mich, 499.