Fitzgerald v. McCandlish

• Decision Date: 22 December 1891
• Citation: 89 Mich. 400,50 N.W. 860
• Court: Michigan Supreme Court
• Parties: FITZGERALD v. MCCANDLISH, Sheriff, et al.

50 N.W. 860

89 Mich. 400

FITZGERALD v. MCCANDLISH, Sheriff, et al.

Supreme Court of Michigan

December 22, 1891

Error to circuit court, Alpena county; ROBERT J. KELLEY, Judge.

Action of replevin by Joseph W. Fitzgerald against Thomas G McCandlish, sheriff, etc., and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Turnbull & Dafoe, for appellants.

George H. Sleator, for appellee.

CHAMPLIN, C J.

This action was replevin, brought by the plaintiff against the sheriff, McCandlish, and certain attaching creditors of Albert C. Frost. On the 28th of June, 1889, Frost executed an instrument which mainly purports to be a chattel mortgage upon certain property therein described, to secure the payment of certain specified creditors, among whom was Joseph W. Fitzgerald, for the sum of $745. The instrument, instead of naming the several creditors as mortgagees, named Joseph W. Fitzgerald as trustee, and stated that for the purpose of securing the payment to him of the sum of $10,000 and interest thereon, "granted, bargained, sold, and mortgaged, and by these presents does grant, bargain, sell and mortgage, unto the said Joseph W. Fitzgerald, the following goods, chattels, and personal property to-wit," describing the property. After describing the property, the instrument continues: "To have and to hold the same forever: provided, always, and the condition of these presents is such, that if the said first party shall pay or cause to be paid to said second party, one day after date hereof, the debt aforesaid, with interest, in trust, nevertheless, to pay the following existing indebtedness of said first party;" then naming creditors, and the amounts due to each; and then proceeding: "It is expressly agreed that the indebtedness aforesaid stated shall be paid by the said Joseph W. Fitzgerald in the order herein stated, so far as the avails of this security shall pay the same; but, if default shall be made in such payment of said ten thousand dollars, said second party is hereby authorized to sell at public auction the goods and chattels and personal property aforesaid, or so much thereof as may be necessary to satisfy the said debt, interest, and reasonable expenses, and to retain the same out of the proceeds of such sale, returning the surplus, if any, to said first party. If, however, said second party shall deem it more advantageous to sell such property, or any part thereof, at private sale, he is hereby expressly authorized to make such private sale, applying the proceeds to the liquidation of such debts in the order set forth as herein before mentioned. The said second party is also hereby authorized at any time when he shall deem himself insecure or said debt insecured, or if said first party shall sell, assign, or dispose of, or attempt to sell, assign, or dispose of," etc.; containing the usual clause as to taking possession contained in chattel mortgages. It is claimed...