26 Mich. 403 | Mich. | 1873
The plaintiff in error brought general assumpsit against the defendants in error, and upon the trial the verdict was
It appears by the bill of exceptions, that upon the 19th of August, 1869, one Oliver P. Burt, a resident of Buffalo, in the State of New York, was the owner of a large quantity of logs, which were then in the possession of the Tittabawassee Boom Company, and in the river intermixed with a large quantity of other logs bearing different marks and belonging to several different parties; that Burt on that day loaned five thousand dollars of the plaintiff, and gave him a chattel mortgage on the logs, to secure the loan, of which two thousand dollars was to be paid September 18th, 1869, one thousand five hundred dollars, October 19th, 1869, and one thousand five hundred dollars, October 25th, 1869. It likewise appears that the payments preceding the last were made as they fell due, and that the last was extended, by a new note, payable in ninety days from October 25th.
At the time this mortgage was given, the plaintiff and Burt seem to have supposed that a filing with effect was practicable, notwithstanding Burt’s non-residence, and the latter was apprehensive that if the mortgage was made public by filing it, his credit would be thereby impaired. He accordingly requested the plaintiff to refrain from filing the instrument, and stated that as the reason. The plaintiff thereupon placed the mortgage in his safe, where it was kept until February, 1870, and he seems not to have made its existence known to any one before that time.
No possession was taken' by the plaintiff, but on the contrary, Burt was suffered to exercise dominion over the property, as though it was unincumbered and remained his own. He was, therefore, allowed by the plaintiff to appear to the world as owner of the logs, and to gain the credit and confidence which that character would give, and such
On the 30th of November, 1869, and about three months and a half after the mortgage to the plaintiff was given, the defendants, without any notice of that mortgage, entered into a written agreement with Burt, concerning a portion of the logs covered by the plaintiff’s mortgage; and the principal facts leading to this agreement, as stated in the record, were as follows: During the season of 1869, and commencing at a time prior to the date of the plaintiff’s mortgage, the defendants sawed a large quantity of logs for Burt, and a part of which belonged to the very lot embraced by that mortgage. A portion of the lumber so made was shipped by Burt. But on the 18th of November, 1869, there remained upon the dock, of the lumber so manufactured, about two hundred thousand feet, upon which the defendants claimed a lien for sawing, amounting to four dollars per thousand.
The defendants urged Burt for payment, and informed him that they would not permit the lumber to be shipped unless they received some money. Their entire demand against him at that time was four thousand nine hundred and forty-one dollars and thirty-three cents. A verbal arrangement was then made, in substance the same as. the subsequent written agreement, and thereupon the defendants relinquished their alleged lien, and consented to the shipping of the lumber, and the same was shipped by Burt on the twentieth.
The reduction of the contract to writing was delayed ■until the 30th of November, on account of the state of defendant Eastman’s health, he being sick at his house. At the time last mentioned the contract was put into writing, when, or rather upon the next day, the defendants,
By the terms of this agreement, as reduced to writing, Burt, in consideration of his indebtedness of four thousand nine hundred and forty-one dollars and thirty-three cents, to the defendants, sold to them all the pine saw-logs then in the possession of the Tittabawassee Booming Company, bearing certain marks, and including such as then remained covered by the mortgage to the plaintiff, and agreed that he had a good unincumbered title. He also agreed to pay the boom-age, due or to become due on the logs, and the expense of running from the boom to the defendants’ mill, at East Saginaw. It was then further provided, that the defendants would sell the logs to Burt, between the date of the agreement and the 15th of March, 1870, upon payment to them of the sale price and interest at ten per cent, per annum; and further, that if the logs should not thus be resold, that then the defendants should saw the logs into lumber in the spring and summer of 1870, within a reasonable time after they should be run to their mill boom, and take from the lumber so made upon the terms particularly specified in the agreement, a sufficient quantity to pay the sum of four thousand nine hundred and forty-one dollars and thirty-three cents and interest at ten per cent, per annum to the date of selection, and also the cost of such sawing, at four dollars per thousand, and whatever the defendants should
The foregoing are the main facts in the case, and they, give rise to this general question, whether the, mortgage title of the plaintiff was such as to entitle him to recover against these defendants, the amount l’emaining unpaid, upon the mortgage, and this is supposed to depend, upon whether the defendants ought to be considered as creditors of the mortgagor, or subsequent purchasers and mortgagees in good faith- within the meaning of the statute. — Rev. Stat. of 1846 ch. 81.
The plaintiff in error, it is true, contended that, when' be got his mortgage, the property was actually out of the possession of Burt, and in that of the boom company, and that therefore no change of possession or delivery was needed', to enable him to hold against third parties. But whatever-view of this point may be admissible, where a party other than the mortgagor", has a hostile, or complete and absolute" possession, a possession which excludes the exercise by the mortgagor of control, and disables him from doing any' thing tantamount to an actual delivery, it appears to me' that in a case circumstanced as this is, there is no room" for raising the question. The possession which the boom company appears to have had up to the time of the agree
Upon the main point the plaintiff contends, that the defendants were neither subsequent purchasers or mortgagees in good faith, because as he claims, the whole consideration was a pre-existing debt. I am unable to concur in this theory of the case, and, therefore, think it not needful to consider whether, upon a just construction of the statute, a mere antecedent indebtedness would be sufficient. The plaintiff here allowed his mortgagor, Burt, to appear to all the world as owner, and suffered the property to remain precisely as though he had no incumbrance upon it.
Under these circumstances, the defendants having a debt against Burt and claiming a lien upon the property, and