Anderson v. Brenneman

• Decision Date: 23 June 1880
• Citation: 6 N.W. 222,44 Mich. 198
• Court: Michigan Supreme Court
• Parties: ANDERSON v. BRENNEMAN.

6 N.W. 222

44 Mich. 198

ANDERSON v. BRENNEMAN.

Supreme Court of Michigan

June 23, 1880

Where there is a mortgage of personal property without the mortgage being filed, the transfer must be followed by an actual and continued change of possession. If it is so bulky this cannot be done, then there must be some clear and unequivocal indication of such transfer, that creditors and subsequent purchasers will not be misled, and where doubts exist they will be solved in favor of the creditor or purchaser rather than the mortgagee.

Error to Marquette.

Dan. H. Ball, for plaintiff in error.

F.O. Clark and E.J. Mapes, for defendant in error.

MARSTON C.J.

Some of the questions discussed we think do not fairly arise upon this record. The action is brought against the sheriff for releasing a quantity of iron levied upon by him by virtue of certain executions in favor of the plaintiff against the Marquette & Pacific Rolling Mill Company. The controversy is narrowed down to 30 1/2 tons, which the sheriff claims was the property of Sylvester T. Everett, under a contract with the company dated August 1, 1877. Ten and a-half tons of this iron was made previous to the date of the contract with Everett, and although sought to be applied thereon afterwards, yet it previously had been mortgaged to S. Coles as security for a debt of the company. The record sets forth that "thirty and a-half tons had, by consent of said Everett, been pledged by said rolling mill company to S Coles, of Marquette, to secure an indebtedness for supplies advanced by said Coles to employes of said company, to the amount of $521.97, and that said pledge had been made by giving to said Coles two receipts for said iron as it laid piled on the dock, as aforesaid, and marking each pile with the initials 'S.C.' " These receipts were as follows:

"Received Marquette, July 28, 1877, on the rolling mill dock twenty-five tons pig iron, in piles Nos. 1, 2 and 3; fourteen and a-half tons of the above to be held by S. Coles as security for note of the Marquette & Pacific Rolling Mill Company, due August 18, 1877--$300. The balance, ten and a-half tons, to be held by S. Coles as security for note of the Marquette & Pacific Rolling Mill Company, due September 2, 1877--$221.97. When said notes are paid, the said iron is released and reverts to W.W. Wheaton, agent.

"W.W. WHEATON, Tr. and Ag't."

"Received check on Second National, Cleveland, $304.08, to take up note due August 15, 1877."

"Received, Marquette, September 19, 1877, on the rolling mill dock, twenty (20) tons pig iron, in piles Nos. 4 and 5, to be held by S. Coles as security for note of the Marquette & Pacific Rolling Mill Company, due October 22, 1877--$360. When said note is paid, the said iron is released, and reverts to W.W. Wheaton, agent.

"W.W. WHEATON, Agent."

Wheaton was the "treasurer, general manager and agent" of the rolling mill company. The first levy was made October 3 1877. After the levy was released this iron was shipped to Everett, he having paid Cole the amount of his claim thereon. There was evidence tending to show that this iron was not marked with Cole's initials, or in any way, at the time the first levy was made. Without passing upon the title, if any, which Everett acquired or took under his contract before inspection, acceptance, or any other act was done to designate it as his, or to show that it was of the quality specified in his contract, let us see if this iron does not stand upon a different footing. This iron was, with the consent of Everett, pledged by the company as its...