Cavanaugh v. Sanderson

152 Mich. 11 | Mich. | 1908

Grant, C. J.

(after stating the facts). 1. The theory of our replevin statute is to provide a remedy for settling the rights to the property in one suit, and to avoid a multiplicity of suits. 3 Comp. Laws, §§ 10679, 10680.

A sale under a mortgage irregular or void for any reason does not discharge the mortgage lien, but places the purchaser at such sale in the position of the mortgagee, and by virtue of his purchase he succeeds to the rights of the mortgagee. Rose v. Page, 82 Mich. 105; Morse v. Byam, 55 Mich. 594; Lyle v. Palmer, 42 Mich. 314; Gilbert v. Cooley, Walk. Ch. (Mich.) 494.

The quashing of the proceedings in E. S. Knowles & 8on v. Cavanaugh, supra, operated as a discontinuance (Forbs v. Washtenaw Circuit Judge, 23 Mich. 497); and left the defendant in position to avail himself of either remedy provided by the statute. If he was entitled to the return of the property, judgment would have been rendered for such return. Under a writ of execution for return, the officer could have seized the property in the possession of the defendant here and returned it to Mr. Cavanaugh. The defendant might have waived the return of the property and recovered judgment for damages. The defendant Sanderson acquired only the rights which Knowles & Son possessed. The issue between'the plaintiff and defendant in this suit is none other than it would have been had Knowles & Son bid in the property and retained possession thereof. In Clark v. West, 23 Mich. 242, Clark had replevied the property in justice’s court. The court rendered judgment in favor of West. West then took possession of the property and put it in the possession of Brown. Clark removed the case to the circuit court by certiorari and peaceably obtained possession of the property from Brown. West then brought a replevin suit for the same property against Clark and Brown. This court held that that was a cross-replevin. The fact that there are other parties in the cross-replevin is not decisive (Fisher v. Busch, 64 Mich. 180), but Is the issue the same? is the material question. The decision in the first replevin suit binds the parties and their privies. Sanderson was a privy of Knowles & Son. I think.Clark v. West controls this case. .

2. I am also of the opinion that the judgment should be reversed for another reason. Knowles & Son had a concededly valid mortgage. It was past due. They were entitled to possession for the purpose of foreclosure. Mr. Cavanaugh, on demand, refused them that right. No other course was open to them than to bring replevin, unless they chose to waive their lien and rely upon the personal responsibility of Mr. Cavanaugh. They brought that suit for the sole purpose of obtaining possession in order that they might sell under the terms of the mortgage. Upon the merits in that case the sole question would have been, Are plaintiffs entitled to possession for the purpose of making sale? It is conclusively established in this trial that Mr. Cavanaugh had not paid the mortgage debt, and that Knowles & Son were entitled to possession for the purpose of foreclosure. There was no jurisdictional infirmity either in the affidavit for the writ of replevin or in the writ itself. The suit was not quashed because of any defect in either. See 144 Mich. 264, where we held that the affidavit and process were sufficient to give the court jurisdiction. The declaration was held defective for noncompliance with a technical but required rule of pleading. Knowles & Son had acquired possession by a lawful writ. They gave to the defendant a bond to properly indemnify him for all costs and damages should plaintiffs fail in the suit. Having obtained a lawful possession, I think it follows that they were entitled at once to exercise their legal right to foreclose. They were not required to retain the property without a sale at an expense which was likely to be more than the entire value of the property. The defendant Cavanaugh was amply secured by the bond.

I am of the opinion that Knowles & Son acquired lawful possession, that the sale was made while such possession was lawful, and that by such sale title has passed to the defendant. Whatever damages Mr. Cavanaugh has suffered he could easily have obtained in the former suit. There is no evidence of any bad faith or fraud on the part of Knowles & Son. The result of the plaintiff’s contention is that his debt is not paid, he has recovered as damages for the usé of the horse from the defendant, who purchased in good faith, probably all that the horse is worth, and has recovered his horse. The law will avoid such an unjust result if it is possible to do so.

Judgment is reversed, with costs of all the courts, and judgment entered for the defendant.

Montgomery, Ostrander,- Hooker, and Carpenter, JJ., concurred.