Corbett v. Littlefield

• Decision Date: 24 December 1890
• Citation: 84 Mich. 30,47 N.W. 581
• Court: Michigan Supreme Court
• Parties: CORBETT v. LITTLEFIELD, Sheriff.

47 N.W. 581

84 Mich. 30

CORBETT v. LITTLEFIELD, Sheriff.

Supreme Court of Michigan

December 24, 1890

Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

Sloman, Berry & Duffie, for appellant.

George W. Radford, for appellee.

LONG, J.

This is an action of replevin to recover possession of two horses known as "Tommy Linn" and "Dan D." The action is brought against the defendant, sheriff of Wayne county, and who held them under three writs of attachment issued against the goods and chattels of Clifton E. Mayne. The cause was tried in the Wayne circuit court before a jury where the plaintiff had verdict and judgment for six cents' damages, he having taken the property under the writ. The plaintiff on the trial below claimed to be entitled to the possession of the property by virtue of a chattel mortgage given by Clifton E. Mayne, the defendant in the attachments. The mortgage was given on the 15th day of July 1887, to George E. Baker, and assigned by Baker to the plaintiff on May 2, 1888. At the time the mortgage was given Mayne, the mortgagor, resided at the city of Omaha, Douglas county, Neb., Baker the mortgagee residing at the same place. The mortgage covered other property besides these two horses, and the property is described in the mortgage as being situate on the ranch of Mayne at Platte Valley stock ranch, in township 16 N., range 9 E., of Douglas county, Neb. The mortgage was duly filed in the office of the county clerk of Douglas county, Neb., on October 1, 1887. The statute of Nebraska authorizing the filing in the county clerk's office was offered in evidence, and is as follows: "Sec. 14. Chattel Mortgages. Every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagors in good faith, unless the mortgage, or a true copy thereof, shall be filed in the office of the county clerk of the county where the mortgagor executing the same resides, or in case he is a non-resident of the state then in the office of the clerk of the county where the property mortgaged may be at the time of executing said mortgage; and such clerk shall indorse on such instrument or copy the time of receiving the same, and shall keep the same in his office for the inspection of all persons; and such mortgage or instrument may be so filed, although not acknowledged, and shall be valid as if the same were fully spread at large upon the records of the county." At the time the mortgage was assigned by Baker to Corbett, the two horses in question, and also a horse known as "Dr. West," were out of the state, in the possession of a man by name of Nebro, who had them in the trotting circuits for Mayne in the different states. They have never been returned to Nebraska, and were on the trotting circuits in Michigan at the time they were attached for the debts of Mayne. On June 12, 1888, it is claimed, Mayne sold the horses to one John Riley, and gave Riley a bill of sale, subject to the chattel mortgage then held by Corbett; and Riley made an agreement, it is claimed, with Corbett to release the chattel mortgages on the horses by the payment of $1,000; and it was claimed on the trial that Riley had possession of the horses at the time they were attached. It also appears that on May 1, 1888, an agreement was entered into between Corbett and Mayne by which Mayne acknowledged the validity of the claims for which the mortgage was given, and authorized Corbett to purchase them. On the part of the defendants it was contended (1) that the mortgage was fraudulent in fact; (2) that, even if not fraudulent in fact, it was void as to those attaching creditors of Mayne, for the reason that it was not filed in Detroit or in Michigan. (3) that the bill of sale to Riley was nothing more than a mortgage, and a fraudulent one at that. These were the issues which were presented to the court and jury. On the trial below, many of the questions raised were questions of fact which, under the charge of the court, were fairly submitted to the jury for determination. Sixteen requests were presented by defendant's counsel to the court to give in charge to the jury, the most of which relate to the necessity of the refiling of the mortgage in this state. Some of those were covered by the general charge of the court, and others were not given and were refused.

The important question in the case arises under the defendant's second point that the mortgage was not filed in this state, and many of the requests to charge were aimed at this point. The court in its charge to the jury, giving construction to the Nebraska statute relative to chattel mortgages, directed the jury that they must hold the chattel mortgage as fraudulent and void, as the property remained in the possession of the mortgagor, unless the plaintiff had shown by a preponderance of evidence that it was an honest security, and not taken for the purpose to hinder, delay, and defraud the creditors of Mayne; but if they found that the agreement of May 1, 1888, between Corbett and Mayne by which Corbett was induced to purchase the mortgage was executed in good faith, for the purpose of procuring Corbett to purchase the mortgage, then, though the mortgage was fraudulent in its...