17 Mich. 128 | Mich. | 1868
The bill in this case alleges that on the 20th day of October, 1865, the complainant obtained judgment against the defendants, Boyd & Wiggins, in the Circuit Court, for-the County of Clinton, upon contract for two thousand and eighteen dollars and ninety cents damages, and costs; that on the second day of December following, an execution was issued thereon, and delivered to the Sheriff of said County of Clinton, and made returnable on the sixth day of February thereafter; that said execution, on the return day thereof, was returned wholly unsatisfied for want of property
By his ansAAm, Hodge admits that he purchased through his agent, Baker, and states that the amount paid Avas the
The recovery of the judgment by complainant, and the issuing and return of execution, as set forth in the bill, were admitted.
The sum of the demands forming the alleged consideration for the sale from Boyd & Wiggins to Hodge was $2510.16; and this was made up of the following items:
Mortgage to Steele on real estate for.....$408 38
Mortgage to Wick on real estate for..... 428 00
Mortgage to Hodge on real estate for .... 448 60
Two liens "by attachment subsequent to the Mortgages for.............. 428 18
Chattel mortgage to Hodge on the personal property,...............737 00
The sale to Hodge was made about the 27th of January, 1866, and the first conversation on the subject must have been had within a very few days before that. Hodge, and his agent, Baker, both testify that they knew that executions against Boyd and Wiggins were in the hands of the sheriff, and that a sale of the property thereon at a sacrifice was apprehended. Boyd and Wiggins were fully aware of the fact that such executions, including that of complainant, were in the sheriff’s hands for service. They were very solicitous to sell, and had been for some time, and had offered the property to several; but on all occasions had absolutely refused to take less than §3,500, except from Hodge. It does not appear that any one, besides Hodge and his agent, were in any way informed oiled to believe that the property could be obtained for less than §3,500 in cash; on the other hand, the testimony tends strongly to show that other parties would have readily paid a much larger sum than that alleged to have formed the consideration of Hodge’s purchase, though it had involved a sufficient payment down to cancel the demands extinguished by Hodge.
The desire of other parties to make the purchase was well known to Boyd and Wiggins, and Hodge’s agent could not have been ignorant of it; but the testimony 'very clearly shows a measurable indifference, if nothing more, by the former, on the subject of a sale to any person but Hodge, and a warm partiality for a trade with the latter.
Indeed, both Wolverton and Dayton seem to have supposed that negotiations were actually going on between them, and Boyd and Wiggins for the purchase of the property at a sum above §3,500, at the very time of the conclusion of the trade between Hodge and the latter; and the
The bargain with Hodge being consummated on the 27th of January, the latter surrendered his claim of $737 on the personal property, and took the real and personal estate without discharging any of the liens upon it, except that covering the claim last mentioned.
He then employed Boyd at fifty dollars per month to take charge of the property.
Wolverton, believing that the negotiation between himself and Boyd and Wiggins was still in progress, and approaching consummation, in a purchase by him for more than $3,500, called again on Boyd on the 1st day of February, and only four days after the purchase by Hodge, but was then informed by Boyd of the sale to Hodge, and was referred to the agent Baker, as the person who would make the sale to him, Wolverton.
The latter thereupon called on Baker in order to effectuate the bargain which he had sometime sought; and although it appeared that Hodge had not purchased with the view of carrying on the livery business, and that in his circumstances he could not carry it on except under disadvantage, and did not intend to keep the property, but was anxious to sell it; nevertheless, it could not be purchased by Wolverton for less than $3,650, with $400 down. This was but four days after the purchase by Hodge, and while the liens on the real estate remained undischarged, Wolverton was obliged to take the real estate subject to the incumbrances to be considered as part of the purchase price. Hodge gave up the securities he held for the $737, and this was the sole act of his in the nature of a payment down. Wolverton paid $400 in cash. The difference between the alleged consideration for the sale to-Hodge on the 27th of
Hnder these circumstances, was the complainant entitled to the relief he asked ? I think that he was. By the management of the defendants, an amount of property belonging to the execution debtors, worth between eleven and twelve hundred dollars, was actually transferred to Hodge, for no apparent consideration whatever, and was immediately trans-, ferred, by the latter, to an innocent purchaser, upon terms satisfactory to Hodge. When the latter sold to Wolverton he exercised his own discretion as to payment and security, and was content to take what he received, in place of the property for which he had paid nothing.
If, on parting with the property thus obtained from Boyd and Wiggins, he received insufficient security, the risk or loss should fall upon him, and not upon the other creditors, who by his means were cut oif from all opportunity to reach the property itself. Whether he made an imprudent sale, or took insufficient security, or made a, gratuitous disposition of the property, he ought not to be allowed to say that he is only chargeable with what he may have actually received from Wolverton.
Having obtained the equity of redemption without 'consideration, and having placed it beyond the reach of the complainant, and having failed to make any explanation which would enable the court to grant relief in any other manner, I think he should be personally charged with the value of the property so obtained. As already stated, such value is sufficiently shown by the conduct of the defendants,
As the decree below placed the value of the 'property so obtained without consideration at the same sum, I think it ought to be affirmed, with costs.