41 Mich. 61 | Mich. | 1879
The bill in this case was filed to restrain the enforcement of a chattel mortgage upon a saw-mill and planing-mill. The mortgage was given by John M. Burnett to Bobert Bain, August 30, 1873, and was subsequently assigned to defendant Byles. While Byles was owner, Burnett tendered the amount, which Byles did not receive. There is a dispute between the parties regarding what took place at the time of this tender; Burnett claiming that the tender was unconditional, while Byles claimed that the attorney who made the tender insisted on its being received in full discharge and satisfaction of the lien, and that he (Byles) declined to so receive it until he had had an opportunity to ascertain the amount of costs that had been made in certain previous proceedings. These previous proceedings are not now very material, as no facts are shown which would entitle Byles to add the costs to the amount of the mortgage.
If the case were to turn upon the evidence of what took place at the time of the tender, we should be greatly embarrassed in disposing of it, so conflicting is the evidence. But there is evidence of subsequent transactions which we think shows very clearly that the parties understood an effectual tender had been made, and that the lien of the mortgage had been discharged thereby.
Burnett, it seems, after the tender had been made, transferred the mill to Daugherty. Byles was a judgment creditor of Burnett, and claiming this transfer to be fraudulent in law, as against Burnett’s creditors, he caused execution to be levied upon the mill. Daugherty replevied it of the officer, but was beaten in the replevin suit, and the officer, for the benefit of Byles, recovered judgment for the amount of his lien and costs, which Daugherty paid. The amount of the judgment must have been equal to the full value of the property at tha^ time. It appears that in the replevin suit no notice was taken of the mortgage as an existing lien upon the mill: if it had been supposed to be valid, it is obvious
We do not agree with the defendants that complainants have an adequate remedy at law. They ought to be at liberty to test the existence of the mortgage lien before a sale of the property is made, in order that, if the decision should be adverse to them, they might, if they elect so to do, pay the amount and save the property.
Nor is the objection a valid one that evidence of the proceedings in the replevin suit, which are not set forth in the bill, is bringing before the court a case not made by the bill. We consider this evidence as merely bearing upon the question of tender; and the tender is fully set forth in the bill, and relied upon.