4 N.W. 440 (Mich. 1880), King v. Hubbell

Citation:4 N.W. 440, 42 Mich. 597
Opinion Judge:COOLEY, J.
Party Name:KING v. HUBBELL.
Attorney:[42 Mich. 599] Seth G. Hutchins and H.E. Burt, for plaintiff in error. Dan. P. Foote, for defendant in error.
Case Date:February 11, 1880
Court:Supreme Court of Michigan

Page 440

4 N.W. 440 (Mich. 1880)

42 Mich. 597




Supreme Court of Michigan

February 11, 1880

Evidence in this case, as to the bona fides with which a certain chattel mortgage was given, considered, and held, such cause was erroneously taken from the jury. Property covered by a chattel mortgage may be attached for the debts of the mortgagor, but where the validity of the mortgage is not disputed, the mortgagee may on demand, and after inventory and appraisment are completed, be entitled to the possession as against the officer; in either case the rights of the one to be so exercised as not to interfere with the rights of the other.

Error to Iosco.

[42 Mich. 599] Seth G. Hutchins and H.E. Burt, for plaintiff in error.

Dan. P. Foote, for defendant in error.


We are not satisfied that the circuit judge was justified in taking this case from the jury on the facts. It cannot be said that there were no facts and circumstances in evidence calculated to cast suspicion on the bona fides of the mortgage. The mortgagor was the son of the plaintiff below, and according to his own evidence had started in business on money borrowed from the plaintiff but a short time before, and there is nothing in the case to show that either father or

Page 441

son had reason to believe that the son had made money in his business.

Under these circumstances that the father should sell to his son $1,500 of railroad stock at par when it had no market value, and apparently no intrinsic value, and take for it a mortgage on his son's stock in trade, was certainly a very extraordinary transaction, and might have been expected to result as it did, in the father soon claiming the goods on his mortgage, while the parties who supplied the goods on credit were left to look to the worthless railroad stock for their satisfaction The trade may have been perfectly honest, and it is not our province or intention to raise any question of that, but if a jury were to conclude that it was entered into for the purpose of relieving the father of his railroad investment at the expense of the son's creditors, it could not be said there were no circumstances[42 Mich. 600] favoring that view. This and some other circumstances, which we need not refer to, fairly entitled the defendant to go to the jury on the facts.

The circuit judge was laboring under a misapprehension when he assumed that if any portion of the mortgage debt was valid and unquestioned, that fact must put an end of all controversy as to the validity of the mortgage. That fact would by no means preclude the bona fides of the mortgage being called in question. This mortgage was upon a merchant's stock in trade, and the nominal amount seems to have been sufficient to exhaust the stock or nearly so. It was sufficient, at any rate, to deter creditors from any attempt to collect their debts, unless they believed they could successfully assail its validity. If...

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