38 Mich. 200 | Mich. | 1878
On the 12th day of November, 1875, plaintiff in error executed and delivered to defendant in error a chattel mortgage upon a span of horses and other personal property to secure the payment of four hundred and forty-nine dollars according to two promissory notes. These notes not having been paid, as claimed by the mortgagee, he took possession of the mortgaged property, whereupon the mortgagor brought this action — replevin— to recover possession of the property taken. Upon the trial, Gardner, who was plaintiff below, introduced evidence tending to prove title to the property taken, its unlawful removal from his possession, and the value thereof, and rested. The defendant then introduced evidence tending to show that the property was taken by him under and by virtue of the chattel mortgage referred to, which with the accompanying notes, were introduced in evidence, when he rested. The plaintiff in rebuttal offered certain evidence which was rejected. The offer is not very clear, yet as we understand it, the offer was substantially that in 1869 the plaintiff had borrowed money from the defendant; that when the same became due it was not' paid; that a certain amount of usurious interest was then added to the principal sum and a new note given for the amount of such principal and interest; that substantially the same course was adopted on several subsequent occasions as the notes became due; that the notes of November 12th secured by mortgage were thus made up, and included a large amount of usury, and that since the giving of these last named notes, the real prin
Neither can, in my opinion, the first position be sustained. The theory upon which the court below proceeded was, that within the doctrine of Tannahill v. Tuttle, 3 Mich., 104, the mortgage operated as an absolute transfer of the title to the property mortgaged, and that the debt was thereby paid. This, however, is not the correct doctrine. Lucking v. Wesson, 25 Mich., 445. As was there said, the true relation of the parties is that of debtor on the one side and creditor, secured by lien upon the property, upon the other. The mortgagee in this case, by seizing Iho property was but adopting one of the methods permitted by law to enforce payment of his debt, and the mere fact that he had not previously brought a personal action upon the notes would not preclude the plaintiff in this action, in an action of replevin, where the notes and mortgage were relied upon in defense, from showing that the notes in part were made up of usurious items, and that in all other respects they had been fully paid. He at all events would have a right to show what amount had been paid upon the notes, for the purpose of reducing the amount of the judgment which the mortgagee would be entitled to recover in this case, as his special interest in the property would be governed by
The judgment must be reversed with costs and a new trial ordered.