Botsford v. Murphy

• Decision Date: 25 January 1882
• Citation: 47 Mich. 536,11 N.W. 375
• Court: Michigan Supreme Court
• Parties: BOTSFORD v. MURPHY and another.

11 N.W. 375

47 Mich. 536

BOTSFORD v. MURPHY and another.

Supreme Court of Michigan

January 25, 1882

Mortgage in this case containing a provision that the mortgagee might take possession at any time if he deemed himself insecure and testimony tending to show that he had reason to regard himself as having been overreached in the value of the property, held, that if so, there was cause enough to regard himself as insecure, and justify a taking possession. There can be no conversion where there is no valuable interest.

Error to Allegan.

Padgham & Padgham, for plaintiff in error.

Jacob V. Rogers, for defendants in error.

CAMPBELL J.

Botsford sued defendants in trover for taking and removing certain mortgaged property prematurely. The mortgage was given by him to Murphy, and contained a clause authorizing the assumption of possession whenever Murphy should deem himself insecure. Heath, who was a deputy sheriff, took the the property as Murphy's agent, and there was testimony tending to show that at the same time he acted or pretended to act on two executions against a third person, one Nigley. It also appeared from plaintiff's own showing that the property was worth much less than the mortgage. Several errors are assigned which related--First, to an alleged trespass in the taking under color of process, to which plaintiff felt obliged to yield when otherwise he would have resisted; and second, to taking when there had been no breach of condition. There was testimony tending to show that Murphy had reason to regard himself as having been overreached in regard to the value of the property, and if so there was cause enough for his regarding himself insecure. If he did he had a right to seize the property.

Upon the other questions, they all relate to supposed errors in allowing a seizure under the mortgage to stand, when aided by a seizure under execution. If these executions had been against Botsford himself, and used for fraudulent purposes the questions presented might arise. But inasmuch as they were against a stranger the officer would have no more protection under them than under the mortgage, and could be as lawfully resisted on the one as on the other. No force was used, and we do not see that these writs were of the least consequence as the case went to the jury. The court below charged quite as favorably for plaintiff as he had a right to ask.

But inasmuch as by his own showing the...