97 Mich. 459 | Mich. | 1893
This is replevin for a team of horses. The plaintiff derived title by virtue of a bill of sale from her husband, Thomas Lillibridge. ' The defendant justified under an execution issued upon a judgment recovered by Ohauncey A. Lillibridge against Thomas. Plaintiff prevailed, and defendant appeals.
Defendant claimed below that the transfer from Thomas to his wife was fraudulent as against the judgment creditor whom he represented; and also, inasmuch as the execution was issued on a judgment recovered for the purchase money of the horses in question, and as the plaintiff knew the fact that the purchase price was unpaid, that, as the plaintiff in' execution had a remedy against the property so long as it remained in the debtor’s hands, the right also exists as against one who purchases with knowledge that the creditor is pursuing the property, even though the statute relating to the procedure for reaching such property is not followed strictly, or even though the transfer precedes the filing of the notice required by statute. The statute (3 How. Stat. § 7716) is as follows:
“The property exempted in the subdivision of which this act is amendatory shall not be exempt from any execution issued upon a judgment rendered for the purchase money for the same property, and any sale of such property after the commencement of a suit to recover the purchase price thereof, and the filing of the notice hereinafter required, shall be null and void as against such an execution: Provided, the plaintiff in any suit shall file or cause to be filed with the clerk of the city, village, or township in which the owner of such property resides, a notice, in which he shall state the time when such suit was commenced, the amount claimed to be due, that the suit is brought to recover the purchase money for the property, a description of the property sought to be reached, and the name of the defendant.”
It is contended in the brief that the creditor has not, in the present case, placed himself in a position to attack the transfer from Thomas to his wife, for the reason that the judgment against Thomas does not, on its face, show that it was rendered for the purchase price of the property; and it is insisted that, if this view be adopted, the plaintiff, upon the undisputed testimony, was entitled to recover. The circuit judge, however, permitted the defendant to show that in fact the judgment was given for the purchase price
The circuit judge construed the statute as intended to exclude the creditor from pursuing the property in the hands of any other than the judgment debtor, unless he had filed a notice of the pendency of the suit brought to recover the purchase money before the transfer of the property; and this without regard to the question of whether the transfer was in good faith or not, he stating to the jury, “The question of the good faith of the transfer to Mrs. Lillibridge is not in the case for your consideration at all.” The court, in reaching this conclusion, evidently treated the proviso in the statute as qualifying the entire preceding portion of the section. We do not so construe
In the most favorable view that can be taken of the testimony of the plaintiff upon the question of good faith, it would present a question for the jury. It is quite evident that the transfer was made for the very reason that the creditor was seeking to recover the debt, and with the purpose of defeating his efforts. The evidence of consideration was very unsatisfactory, and it might well have been found by the jury to have been grossly inadequate.
The judgment will be reversed, with costs, and a new trial ordered.