Cooper v. Brock

• Decision Date: 08 October 1879
• Citation: 2 N.W. 660,41 Mich. 488
• Court: Michigan Supreme Court
• Parties: JAMES W. COOPER and others, Plaintiffs in Error, v. MARTIN W. BROCK, Defendant in Error.

2 N.W. 660

41 Mich. 488

JAMES W. COOPER and others, Plaintiffs in Error, v. MARTIN W. BROCK, Defendant in Error.

Supreme Court of Michigan

October 8, 1879

Terms of defeasance are not necessary to a mortgage. An instrument in the form of a bill of sale, reciting that it was given for security, and purporting to convey for property worth three times the consideration expressed, was construed as a chattel mortgage. Chattel mortgages are declared absolutely void for want of filing or change of possession of the property. Comp.Laws, � 4706. All conveyances of personalty are made only presumptively void, under the same circumstances, by Comp.Laws, � 4703. Held, that section 4703 does not apply to chattel mortgages.

________ITE 41 Mich. 489>>________, for plaintiffs in error.

________ for defendant in error.

MARSTON J.

The only question of importance to be determined in this case is whether the bill of sale, so called, from Weatherly to plaintiffs, was an absolute conveyance of the property or a mortgage? Counsel for plaintiffs claimed that the instrument contained no terms of defeasance which were necessary to constitute it a mortgage, and was the decisive test, and that the case was governed by section 4703, and not by section 4706, of the Comp.Laws. The mere fact that an instrument does not contain terms of defeasance cannot be at all decisive in determining the question whether it shall be considered a mortgage or not. If from the entire instrument either standing alone or read in the light of the surrounding circumstances, it appears to have been given as a security, it must be considered as a mortgage, and the law will apply thereto the laws applicable to mortgages. The instrument in this case, which is in the usual and ordinary form of a bill of sale of personal property, contains this clause: "This bill of sale is given for the security of moneys advanced by said Cooper and Ross." There is another peculiarity about this instrument: the consideration recited is $1,200, and it purports to sell and convey "500,000 black ash barrel hoops, part made and in course of manufacture; also hoop timber cut and skidded, and now cutting and skidding, supposed to be 400,000 of said timber." It appeared that Weatherly was to, and did, proceed to manufacture the timber referred to into hoops, and that when the hoops were manufactured they were worth upwards of three dollars per thousand. Indeed, there was a contract of a previous date between these parties to pay $3.10 per thousand for hoops.

It would seem very clear, therefore, that it could not have been the intention of these parties, the one to sell and the other to purchase hoops of the value of nearly or quite three thousand dollars, for the consideration expressed in this instrument. Had the plaintiffs received the full nine...