Burrill v. S.N. Wilcox Lumber Co.
| Citation | 65 Mich. 571,32 N.W. 824 |
| Court | Supreme Court of Michigan |
| Decision Date | 28 April 1887 |
| Parties | BURRILL v. S.N. WILCOX LUMBER CO. and another. |
Error to circuit court, Newaygo county.
D.E. Corbitt, for plaintiff.
William D. Fuller, for defendants and appellants.
This controversy arises out of a transaction wherein the plaintiff loaned her son the sum of $2,500 in the spring of 1881, and took a chattel mortgage on the shingle-mill and all the appurtenances, which he bought with the money, for her security. In the fall of 1882, the son, E.C Burrill, contracted for the purchase of a certain piece of land of the defendant, and moved the mill on the land. The contract contained the following clause, viz.: "And that the buildings and improvements placed or made upon said premises by or under the said party of the second part, his representatives and assigns, shall remain thereon as a further and additional security for the execution of the covenants herein contained on the part of the said party of the second part, unless the said party of the first part, its heirs, representatives, and assigns, or some person authorized thereto, shall consent in writing to the removal of such buildings or improvements, or any part thereof." The property was located in Montcalm county at the time the mortgage was given, and a year and a half afterwards it was removed, with the consent of Mrs. Burrill, to the land contracted for, near White Cloud, in Newaygo county, and was there placed in a building erected by young Burrill.
The mortgage was kept properly renewed from year to year by the filing of the proper affidavit for that purpose. On the twenty-ninth of September, 1884, E.C. Burrill executed a bill of sale of the mill property to his mother. It included all other property owned by him, for the consideration named therein of $3,500. On the first day of October, 1884, J.H Tatem, acting as agent for plaintiff, took possession of the mill property for Mrs. Burrill under the chattel mortgage and bill of sale, and placed one Bayne in charge of the same. On the fifteenth day of October, 1884, the defendant Standish acting for the S.N. Wilcox Lumber Company, went to the mill, and, finding Mr. Bayne absent at that time, took, as he claims, possession of the land and mill property, claiming the right so to do under the land contract, it having been forfeited by Burrill, and refused to surrender the property in question to Mrs. Burrill on demand being made therefor by her attorney, Mr. Tatem. The plaintiff then brought this suit to recover the value of the mill property. The cause was tried in the Newaygo circuit, and judgment rendered for plaintiff for $2,666, and costs.
Nine errors are assigned to the charge of the court, and his refusal to charge, and the remainder are to the rulings of the court in taking the testimony. The benefit of all the exceptions upon which error is assigned is claimed by defendants' counsel, and we therefore consider them seriatim.
The chattel mortgage was offered in evidence, and received by the court. The first renewal was then offered in evidence, dated May 20, 1882. This was objected to, on the grounds that it was irrelevant and immaterial, and not made within 30 days prior to the expiration of the first year after the mortgage was filed, as required by statute. The mortgage was filed June 6, 1881. We think the renewal affidavit was made in due time, and is within the meaning of the statute requiring it to be made "within thirty days next preceding the expiration of the year" from the filing the mortgage or a copy thereof, and the court did not err in admitting the renewal in evidence offered.
It was claimed upon the trial that the original bill of sale given by E.C. Burrill to the plaintiff was lost, and the testimony was offered by plaintiff's counsel to show that fact. A long examination was had upon that subject, and the court held the loss was sufficiently proved to admit in evidence a copy testified to be correct by the party making it, against the objection of defendants' counsel. The testimony was sufficient, and the...
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