10 Mich. 508 | Mich. | 1862
Complainants and the defendants Town, Shelden and Smith, upon the 15th day of August 1859, sued out attachments against, one Edwin Young, in the Circuit Court for the county of Washtenaw. The defendants’ writ was served first. Judgment was subsequently obtained, upon the admission of Young, in each case.
Complainants filed their bill to obtain priority over defendants, on the ground that, when the latter sued out their attachment, this claim was not due; it having, as was alleged, arisen out of sales of goods on a four months credit, which had not expired. Defendants answered, claiming upon facts set forth that their demand was due, and that, on. the other hand, complainants had attached prematurely on a demand all of which was not then due.
Upon comparison of the testimony we are entirely satisfied that the goods sold by defendants were sold on four
When defendants issued their attachment there was due only eleven dollars and twenty-five cents; and they had no right to levy an attachment for any greater sum. Hale v. Chandler, 3 Mich. 531. That sum was not within the jurisdiction of the Circuit Court. Same case.
It is claimed, however, that, inasmuch as Young permitted judgment to go against him for the full amount, no proceeding can now be had by other creditors to go behind that judgment, to inquire whether it was founded on a claim not due at the date of the attachment. This was fully considered in the case of Hale v. Chandler, and we shall not therefore discuss it at length. But the argument rests upon grounds entirely fallacious. Such a judgment is binding, perhaps, as between the parties. But it was rendered after complainants had levied their attachment, and thus obtained a legal statutory advantage; and there is no principle of law upon which such an interest once obtained can be divested, by proceedings to which they are not parties. They had a lien on the property attached, to the amount of their own lawful demands then due, subject only to any lien which defendants could lawfully hold under the statute. Young could neither increase nor diminish the lien of any party.
A portion of the demand of complainants was not due when their suit was commenced, and defendants insist that, by reason of including this in the judgment, complainants are guilty of a fraud, and cannot therefore come into a court of equity for relief. Where an attachment is made
Defendants further claim that they are entitled to a priority of payment out of the funds realized from the attached property, by reason of a prior chattel mortgage for §1,200 executed by Young to one Leadbeater, and by him assigned to them. The testimony shows this claim to be unfounded. It does not appear that the mortgage
Complainants are entitled to a preference over defendants, to the amount of their judgment, after deducting $136.83 with interest from the date of the attachment, which was August 15, 1859.
The decree below must be reversed, with costs, and a new decree entered as above directed. As the sum realized does not exceed the preferred claim, it is unnecessary to make any further directions.
I am inclined to believe the testimony of Shelden in preference to that of Young, and to hold that the goods were not sold by the defendants to Young upon a credit of four months, nor of any particular time. The positive testimony of Shelden is to this effect, and that of Young does not shake or weaken it, while the conduct of the latter very greatly impairs his credibility. But were it otherwise, if the conduct of the defendants was ah actual or constructive fraud upon the complainants, theirs was equally so upon the defendants, and neither is entitled to the aid of equity against the other. We do not sit here to balance frauds and give judgment in favor of the party whose fraud is the least.
I- think the decree of the Court below should be affirmed.
Decree reversed.
As it appears upon investigation that there is a balance of property remaining after applying enough to cover complainants’ lien under their attachment, the question arises how it shall be distributed. This must depend upon the priority of the rights arising from the judgments and executions against Young. It appears that complainants obtained judgment for their whole claim upon Young’s confession, and issued execution upon it against this property, in September 1859: while the defendants obtained Young’s admission, and entered judgment and sued out execution, in the month of January thereafter. Complainants, therefore, have a clear legal priority for the whole amount of their judgment; and nothing can be applied on that of defendants until the former is satisfied. The decree must be framed accordingly.