Brink v. Freoff

• Decision Date: 22 April 1879
• Citation: 40 Mich. 610
• Court: Michigan Supreme Court
• Parties: Abigail Brink v. Alfred Freoff

40 Mich. 610

Abigail Brink v. Alfred Freoff

Supreme Court of Michigan

April 22, 1879

Submitted April 11, 1879 [Syllabus Material]

Error to Wayne. Submitted April 11. Decided April 22.

Judgment reversed with costs and a new trial ordered.

Hawley & Firnane for plaintiff in error. A mortgagee of chattels may sell everything covered by the mortgage, on default in the payment of an instalment of the debt, McConnell v Scott, 67 Ill. 274; Halstead v. Swartz, 1 Thomp. & C., 559; Burton v. Tannehill, 6 Blackf. 470; 1 Schouler's Pers. Property, 553; Herman on Chattel Mortgages, 212; Reddick v. Gressman, 49 Mo. 389; Robinson v. Wilcox, 2 N.Y. Leg. Obs., 160; the measure of damages for the conversion of property in which the defendant has such an equitable interest as security for a debt as would have entitled him to sell it in case of the debtor's default, is its residuary value after deducting the amount of the debt. Field on Damages, § 822; Sedgwick on Damages [6th ed.], 482, n. 2; Cooper v. Newman, 45 N.H. 339; 2 Greenl. Ev., § 276; Curtis v. Ward, 20 Conn. 204; Fowler v. Hoffman, 31 Mich. 215; Burk v. Webb, 32 Mich. 173; Brady v. Whitney, 24 Mich. 154.

Ward & Palmer for defendant in error. Every instalment of a real estate mortgage is in effect a separate mortgage (Comp. L., §§ 5157-8; Brown v. Thompson, 29 Mich. 72), and chattel mortgages follow the analogy. Formerly the title to mortgaged property vested conditionally in the mortgagee and became absolute on breach of condition (Tannahill v. Tuttle, 3 Mich. 104), but it was afterwards held that the mortgagee could redeem before the property had been reduced to possession or sold under the mortgage, Van Brunt v. Wakelee, 11 Mich. 177, and that title did not pass to the mortgagee on breach of condition until after foreclosure, Lucking v. Wesson, 25 Mich. 443; Kohl v. Lynn, 34 Mich. 360; Caruthers v. Humphrey, 12 Mich. 270; taking another's property wrongfully and disposing of it in disregard of his rights, even if only for a temporary purpose, is a conversion, Cooley on Torts, 448-9, 451; Liptrot v. Holmes, 1 Kelly (Ga.), 391; Hare v. Pearson, 4 Ired. (N.C.), 76; Gilman v. Hill, 36 N.H. 311; Boyce v. Brockway, 31 N.Y. 490; West Jersey R. R. Co. v. Trenton Car Works Co., 32 N.J.L. 517; Webber v. Davis, 44 Me. 147; Briggs v. Bost. & L. Ry. Co., 6 Allen 241; Spaulding v. Barnes, 4 Gray 330; Thompson v. Currier, 24 N.H. 237; Pickering v. Coleman, 12 N.H. 148; Dunlap v. Gleason, 16 Mich. 158; tender discharges a lien, Moynahan v. Moore, 9 Mich. 9; Caruthers v. Humphrey, 12 Mich. 270; Van Husan v. Kanouse, 13 Mich. 303; Potts v. Plaisted, 30 Mich. 149; Eslow v. Mitchell, 26 Mich. 500; and is waived by absolute refusal to accept it, Lacy v. Wilson, 24 Mich. 479; Flanders v. Chamberlain, 24 Mich. 305; Mattocks v. Young, 66 Me. 459; Bellinger v. Kitts, 6 Barb. 273; Barker v. Parkenhorn, 2 Wash. C.C. 142; Wesling v. Noonan, 31 Miss. 599; Stone v. Sprague, 20 Barb. 509; Brewer v. Fleming, 51 Pa. 102; Ashburn v. Poulter, 35 Conn. 553; Thorne v. Mosher, 20 N.J. Ch., 257.

Marston, J. The other Justices concurred.

OPINION

Marston, J.

Freoff brought an action of trover to recover the value of certain property [including a number of animals] taken by Mrs. Brink upon a chattel mortgage after default in the payment of the first installment, and sold to satisfy the entire amount secured by the mortgage before due.

Mrs. Brink had the right to take possession of all the property covered by the mortgage, and sell sufficient of the same to satisfy the amount then due with interest and costs thereon. When the mortgaged property consisted of several articles or things, as in this case, after sufficient was sold for the purpose mentioned, she could not proceed and sell the balance of the property in satisfaction of or to apply upon the installment not then due. To permit this would be to allow payment of the debt before due, but it would deprive the mortgagor, or those claiming under or through him, as creditors or assignees, from redeeming the property by a payment of the debt when due and before sale. This right is a substantial one of which the mortgagor cannot thus be deprived.

The authorities referred to in the brief of counsel, which seem to hold that after a default in the first installment, the entire property mortgaged, although severable, and more than sufficient to pay the amount due with costs, might be sold, are based upon the theory that the mortgagee's title to the property becomes absolute upon default, a doctrine which at present has no standing in this State. A chattel mortgage being a mere security for payment of the debt secured, the mortgagee cannot sell and dispose of the property in satisfaction of the debt until it becomes due; and no matter how advantageous it might appear to be for the mortgagor to have this done, in order to prevent cost and expense in feeding and caring for the property while in possession of the mortgagee, awaiting the maturity of the debt, yet this, unless otherwise agreed upon, cannot be done. The statute permits a sale of the entire property under a real estate mortgage in certain cases, and an application of the proceeds thereof upon installments not then due, but it has no bearing upon cases like the present.

A question as to whether a tender of the amount of the debt was made before suit brought, became of some importance on the trial.

It appeared that a tender or offer of the money was made, coupled with a demand for the property wrongfully sold; that at the time this offer and demand were made, Mrs. Brink did not have the property, except one horse, the same having been purchased by third parties at the sale; that she so informed the parties making the offer. Indeed this fact was well known to all.

It is said that a tender to be good must be...