96 Mich. 79 | Mich. | 1893
On the 12th day of October, 1891, one-Dennis McCarty, who was engaged in business at Ishpeming,. gave a chattel mortgage to plaintiff, in the sum of $3,500,. covering the stock then in his store, and all additions to-the stock. The mortgage was withheld from record until December 22,1891, when it was duly filed. January 25, 1892, McCarty made a general assignment to the defendant, who took possession, and advertised the stock for sale. February 18, 1892, Kennedy demanded possession, and, on the refusal of the assignee to deliver the goods into his possession, brought the present action of replevin, claiming the right to possession under the insecurity clause of his mortgage. It appears that McCarty continued to buy goods, and made purchases to the amount of $1,057.87, after the giving of the mortgage, and prior to its filing. On the trial the jury found that there was no fraud in fact in the making of this mortgage; that the value of the goods replevied was $3,936.53; that the amount of plaintiffs mortgage was $3,633.58; that creditors for goods sold the mortgagor after the making of the mortgage, and before its filing, held claims to the amount- of $1,057.87; and thereupon the circuit judge ordered judgment to be entered for 6 cents damages and costs in favor of plaintiff, and for the defendant, for a special lien for the amount of $1,057.87. Both parties bring errpr.
The plaintiff contends that the lien of the creditors cannot be greater than is necessary for the protection of those who sold goods to McCarty after the making of the mortgage, and before it was filed, and whose debts remained
Can the rights of the parties be worked out in this replevin suit? And, if so, what should be the form of
1. The plaintiff having failed to tender the amount of the special lien for the protection of which the assignee, as a representative of the special creditors, was entitled to hold possession of the property, the defendant is entitled to a general verdict, and to costs of the court below.
2. The defendant, having waived a return of the goods, is entitled to a verdict for the value of the property, less the plaintiff’s lien, which is entitled to priority over the general creditors.
It may be added, while not necessary for a determination of this case, that, as to any indebtedness due to the plaintiff not realized by these proceedings, he would be •entitled to seek, and may have, his remedy on the general •distribution of the funds by the assignee.
The judgment will be reversed, and a ■ new trial ordered. Neither party will recover costs in this Court.