Brooks v. Nichols

• Decision Date: 28 April 1868
• Citation: 17 Mich. 38
• Court: Michigan Supreme Court
• Parties: Nathaniel W. Brooks v. Daniel B. Nichols et al

17 Mich. 38

Nathaniel W. Brooks v. Daniel B. Nichols et al

Supreme Court of Michigan

April 28, 1868

Heard April 25, 1868

Error to Wayne circuit.

This was an action of replevin to recover possession of certain personal property levied upon by defendants by virtue of an execution.

The jury, in a special verdict, found the following facts:

1. That prior to and on the 29th day of September, A. D. 1866, one Stewart McDonald was the owner of the property described in the plaintiff's declaration, and that the same constituted a part of the household furniture then owned and used by said McDonald.

2. That on said 29th day of September said McDonald being in embarrassed circumstances, made a general assignment of all his property, real and personal, saving and excepting such as is exempt from seizure and sale under execution, by the laws of this state, to the plaintiff, as trustee for the benefit of said McDonald's creditors.

3. That said assignment was made in good faith and without any intent on the part of said McDonald to hinder, delay or defraud his creditors.

4. That at the time of said assignment the said McDonald owned household furniture, including the articles in controversy in this suit, of the value of $ 695.75.

5. That at the time of making said assignment all the articles of said furniture were in the possession of said McDonald, and no delivery thereof, or of any part thereof, was ever made to said plaintiff, but the whole of said furniture remained in the possession of said McDonald until after the levy of the execution hereinafter mentioned, and that no selection separation or designation by agreement between said McDonald and the plaintiff, or otherwise, of the particular articles of said furniture, which should pass under said assignment to the said plaintiff, or of the articles which said McDonald should retain as exempt from levy and sale under execution was ever made prior to the levy of the execution hereinafter mentioned.

6. That on the 18th day of January, A. D. 1867, the defendant Nichols, who was then a deputy sheriff for said county of Wayne, by directions of said defendants Moore, Foote and Bagley, levied upon the whole of said furniture, all of which was then still in the possession of said McDonald, under an execution issued out of the circuit court for the county of Wayne, upon a judgment recovered against said McDonald, in favor of said defendants Moore, Foote and Bagley, on the 18th day of January, A. D. 1867, for the sum of $ 1,029.04 damages and costs. That upon making said levy said Nichols caused all of said furniture to be duly appraised in accordance with the statute, and after such appraisal said McDonald selected from such furniture as exempt from execution certain articles to the value of $ 250, and after such selection the plaintiff on the 19th day of January, A. D. 1867, sued out the writ in this cause and replevied the remainder of said furniture which is the same property...