33 Mich. 287 | Mich. | 1876
• The controversy hero relates to the title of a span of horses. The defendant in error claims them by virtue of a chattel mortgage given by Harvey Campbell, the husband of the plaintiff in error. Harvey Campbell lived with his wife on her farm, and the horses were there, and in use. Quaclconbush, claiming that a breach had occurred in the condition of the mortgage, replevied the horses without previously making any demand for them. The court below held that no demand was necessary.
We think this was erroneous. The horses were rightfully on the farm, and Mrs. Campbell, who was the owner of the farm, could not be deemed wrongfully in possession until she had refused on demand to surrender them. Her claim that she owned them was not in itself a wrongful act, and could not subject her to a suit. The' mortgagee of her husband was at least bound to present his claim and see whether she would recognize it or not, before he could lawfully subject her to the costs of a suit.
We are referred, in support of the ruling, to Trudo v. Anderson, 10 Mich., 357; but in that case the possession of the defendant was, as to the plaintiff, a wrongful possession. ’ In this case the horses had remained where they
As this will dispose of the case on a new trial, it seems hardly necessary to go farther; but it may bo proper to say that much evidence was received of what had been done by the husband and said by him in other cases, which was entirely incompetent. Testimony of that nature could not be received against this defendant unless the acts or statements testified to were done or made in her presence or with her knowledge.
The judgment must be reversed, with costs, and a new trial ordered.