Cary v. Everett

• Decision Date: 24 December 1895
• Citation: 107 Mich. 654,65 N.W. 566
• Court: Michigan Supreme Court
• Parties: CARY ET AL. v. EVERETT ET AL.

65 N.W. 566

107 Mich. 654

CARY ET AL. v. EVERETT ET AL.

Supreme Court of Michigan

December 24, 1895

Error to circuit court, Cass county; Thomas O'Hara, Judge.

Action by Abram Cary and others against Omer R. Everett and others. There was a judgment for plaintiffs, and defendants bring error. Reversed.

Spafford Tryon, for appellants.

Charles E. Sweet, for appellees.

LONG J.

This is an action of trover for the recovery of the value of 400 bushels of wheat. Defendants pleaded the general issue. It appears that the plaintiffs on September 16, 1890, commenced suit in attachment before a justice of the peace against Lewis J. Hadden, and on the same day attached 20 acres of wheat that had been sown by Hadden on his wife's farm, in Wayne township, Cass county, and upon which Hadden resided. No personal service of the attachment was had upon the defendant, but the officer having the writ filed a notice in the town clerk's office that he had attached the wheat on that day, and described it as being on defendant's farm, and as the wheat that was then sown in the field of 33 acres. The writ of attachment was dated September 16, 1890 put into the hands of the deputy sheriff, Marshall P. Merwin on the day of its issue, and he made return of the attachment as follows: "By virtue of the within attachment, I Marshall P. Merwin, on the 16th day of September, 1890, seized the goods and chattels of the defendant mentioned in the inventory, of which the annexed is a copy." This was signed by Mr. Merwin, as deputy sheriff, but not dated. The inventory annexed to his return states: "Copy of inventory of the goods and chattels this day seized by me by virtue of the annexed attachment: All the right, title, and interest of the defendant named in said writ of attachment in and to the wheat now sown and growing on about twenty acres of ground on the farm of Mrs. Lewis J. Hadden, in the township of Wayne, Cass county, Michigan, being about twenty acres of wheat, more or less. Dated September 16, 1890. [Signed] Marshall P. Merwin, Dept. Sheriff." It appears that a constable also made a return upon the writ, as follows: "I hereby certify that I made diligent search and inquiry during all the time in which personal service could be made, and am unable to find said Lewis J. Hadden within said county, and therefore, on the 18th day of September, 1890, because the said defendant could not be found, I left a copy of the within attachment and the said inventory, duly certified by me, at the last place of residence of said defendant in the same county of Cass, with Mrs. Lewis J. Hadden, the wife of defendant,-a person of suitable age and discretion. [Signed] Stephen Secor, Constable." This return is not dated. Judgment was thereafter entered in this attachment proceeding, and on July 16, 1891, the wheat was levied upon, and sold in the shock, under such execution, to the plaintiffs, for the sum of $100. At the sale 75 or 80 bushels were set off to defendant Hadden as exempt. Prior to this, and on September 18, 1890,-being two days after the attachment proceedings were commenced, and after the notice of levy had been filed in the town clerk's office,-Lewis J. Hadden gave to the defendants a chattel mortgage upon this wheat, with other wheat, which mortgage was duly filed in the township clerk's office of Wayne township. The defendants, at the time they took their mortgage, were ignorant of this attachment proceeding, and had no notice that the wheat had been attached, except such notice as the record in the town clerk's office might give. They afterwards took possession of the wheat, and harvested, threshed, and sold it. The plaintiffs claim title to the wheat in question under the execution sale. The record does not show that the chattel mortgage was ever foreclosed by the defendant. It was not due at the time they took possession of the wheat under it; the wheat being taken in July, and the mortgage not being due until September, 1891. The plaintiffs purchased in under the execution sale July 6, 1891, and before the defendants went in under their chattel mortgage.

Plaintiffs' contention is that, having purchased the wheat in on the execution sale on July 6th, they were in possession, and could hold the same against any person who had no right of possession, and that the defendants took possession under their mortgage wrongfully, before it was due, and sold the property without foreclosing it; the mortgage not giving them the right of possession until after condition broken. On the other hand, it is contended by d...