French v. Newberry

• Decision Date: 15 May 1900
• Citation: 124 Mich. 147,82 N.W. 840
• Court: Michigan Supreme Court
• Parties: FRENCH v. NEWBERRY.

82 N.W. 840

124 Mich. 147

FRENCH v. NEWBERRY.

Supreme Court of Michigan

May 15, 1900

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Replevin by Cassius M. French against Edward H. Newberry. From a verdict and judgment for plaintiff, defendant brings error. Reversed.

Frank T. Lodge, for appellant.

T. E Tarsney, W. G. Fitzpatrick, R.I. Lawson, and D. B. Hayes, for appellee.

MONTGOMERY C.J.

Defendant a constable, under an execution upon a judgment in favor of Frank T. Lodge against Lester B. French, levied upon some horses, harness, and a phaeton, as the property of French. At the time of the levy the property was in possession of Manchester, a livery stable keeper, who pointed out to the constable the property levied upon as Mr French's property. After the levy, defendant left it with Manchester, taking a receipt therefor in the usual form, and was proceeding to advertise and sell when plaintiff, a brother of Lester B. French, began the present suit in replevin. The testimony tended to show that the property was purchased by Lester B. French, the consideration paid by him and a receipted bill rendered in the name of Cassius M. French, and an order given to Mr. Manchester, in whose possession the property was, to deliver the same to Cassius M. French. The evidence also showed that Lester B. French used the property most of the time. The theory of the defendant was that Lester B. French made the purchase ostensibly in the name of plaintiff, but with the purpose of circumventing his (Lester's) creditors; that, as a matter of fact, the property was really his from the first. The circuit judge charged the jury on plaintiff's request as follows: 'It is left to the jury to say if there is any evidence in the case to show that Mr. Lodge extended credit to Lester B. French on the strength of this property, or to show that he knew of this property at the time this claim arose; and if he did not, and did not rely upon it, he could not complain of the transfer of the property.' This was error. 2 Bigelow, Frauds, 327. It is contended on the part of the plaintiff that this error was without prejudice, for the reason that, where the title to the property was never in the debtor, it is not subject to levy on execution, but the creditor must seek his remedy by creditors' bill. This is the rule as to real estate established in this state. Maynard v. Hoskins, 9 Mich. 485. In many of the states,...