Montgomery v. Wight

• Decision Date: 12 May 1860
• Citation: 8 Mich. 143
• Court: Michigan Supreme Court
• Parties: Harvey Montgomery v. Henry A. Wight and another

8 Mich. 143

Harvey Montgomery v. Henry A. Wight and another

Supreme Court of Michigan

May 12, 1860

Heard May 4, 1860 [Syllabus Material]

Case reserved from Wayne circuit court as follows:

"This was an action of replevin, brought to recover one chestnut stallion called Jacksonian.

"There was evidence that on the 20th of March, 1858, F. W. Backus was the owner of the horse in question; that on that day he executed a chattel mortgage--but without any change of possession of the property--conveying this and other property to S. P. Brady. The mortgage was duly filed in the clerk's office of the city of Detroit, and was in force and unpaid on the 11th of August, 1858. Prior to that time and after May, 1858, Backus removed a part of his property and this horse included, to the town of Anderdon, Canada, with the intention of residing, and resided there without his family until December, 1858, when his family joined him, and he became a permanent resident. On the 11th of August he executed a mortgage, also without change of possession, to the plaintiff, to secure a bona fide indebtedness. By this mortgage several horses are conveyed; they are therein described as follows: 'One brown mare, one sorrel horse, one bay horse, one brown colt,' and after describing household goods and other property, the description concludes with these words: 'and all other goods and chattels and personal property now being at the residence of said Backus, in Onslow cottage, in the township of Anderdon.' This mortgage was executed, verified and filed, in accordance with the statutes of Canada relating to chattel mortgages, which statutes being the laws of Canada for 1857, are by consent considered a part hereof, and were in evidence, and are sent herewith.

"It was in proof on the trial, subject to objection, that on the 11th of August, 1858, Backus had no other chestnut or sorrel horse; that the horse replevied was then--at the time of the mortgage to plaintiff--a sorrel, but had changed in color, and become at the time of the replevin a chestnut. And that the horse was then, i. e., when mortgaged to plaintiff, at the place of Backus, and that Backus had not there, or at any place in Canada, any other sorrel or chestnut horse.

"It was also in evidence that on the 20th day of March, 1859, the mortgage so given to Brady had become void for want of a renewal thereof, as provided for by the statutes of this state.

"It was in proof that Backus brought the horse to Detroit, on the 2d day of May, 1859, for the purpose of having him trained, where he remained until replevied; that the defendants, having a judgment against Backus, issued execution thereon, and levied upon this horse on the 16th day of June, 1859; they became the purchasers at the execution sale, and held the horse by virtue thereof at the date of the writ of replevin.

"Upon these facts the following questions arise and are reserved for the opinion of the Supreme Court thereon:

"1. Was it competent for Backus to execute the mortgage to Montgomery while the Brady mortgage was in force and unpaid?

"2. Was the description of the property contained in the Montgomery mortgage sufficient to render the mortgage valid under the statutes of Canada, above referred to?

"3. Was it competent to aid the description by the parol proof which was received subject to objection, and hereinbefore mentioned?

"4. If the mortgage given by Backus to Montgomery was valid under the statutes of Canada, did the lien thereby created cease when the property was brought into the state of Michigan?

"5. Did the mortgage given to Montgomery, if valid under the laws of Canada, protect the property, when brought into the state of Michigan, from levy and sale under the defendant's execution?

"6. If the mortgage given to Montgomery did not protect the property from levy and sale under the defendant's execution, would said levy and sale take priority of said mortgage."

W. Gray, for plaintiff:

The description in the mortgage is sufficient. The statute (Stat. of Canada, 1857, p. 7) is not to be construed as requiring the most perfect possible description, for that would defeat all mortgages. The statute only requires good faith, and is merely directory in this particular: Rose v. Scott, 17 Q. B. (Canada), 385. And it is proper to aid the writing by parol proof which does not contradict it. The testimony given was also admissible for the purpose of identity.

If the mortgage was valid in Canada, the lien did not cease when the property was brought here. The true doctrine is this: If a contract made in one country is against the law or policy of another, it will not be enforced in the latter; but if valid where made, and might be made in the latter, it will be enforced: Story Confl. L., §§ 326, 327. See 3 Mich. 123. A mortgage made in New Hampshire was held invalid against the property in Vermont, when found there in possession of the mortgagor (23 Vt. 284), because a mortgage without change of possession could not be made in Vermont. The mortgage was therefore against the law and policy of that state: 11 N. H., 64; 10 N. H., 46.

Wells & Hunt, and H. D. Terry, for defendants:

The description in the mortgage was insufficient: Rose v. Scott, supra; Lawrence v. Evarts, 7 O. S. R., 194.

But if the mortgage was good in Canada, the lien ceased on the property being brought here. Though our courts are bound to recognize the existence of the liens under the foreign statute, they are not to give them a priority over other liens acquired under our own statutes: Story Confl. L., §§ 323, 324, 325, d, 325, k, 326, 327, 388, 389; 15 Pick. 11; 13 Mass. 146; 5 N. H., 213; 9 Vt. 358; 11 N. H., 55; 23 Vt. 279. At the common law, and independent of the Canadian statute, the Montgomery mortgage would be absolutely void, for it could not be filed here. Can the Canadian statute change the rule here? Does the comity of nations require that it should have such an effect? And that the courts of this state should hold that it defeats the liens acquired by our own citizens upon the property of a debtor found here? We think not.

OPINION

Campbell J.:

The questions arising in this case all go to the inquiry whether the mortgage, made by Backus to Montgomery, takes precedence of the execution sale against Backus, whereby the property was sold.

The mortgage from Backus to Montgomery was made in Canada, and, in order to be valid at all, must be sustained under the laws of Canada. It is claimed by the defendants that, under those laws, the description of the horse in controversy is insufficient.

By the Canadian statute of 20 Vic., C. 3, § 4, it is declared...