Hall v. Nash

• Decision Date: 06 June 1862
• Citation: 10 Mich. 303
• Court: Michigan Supreme Court
• Parties: Frederick Hall and others v. Martin A. Nash and others

10 Mich. 303

Frederick Hall and others v. Martin A. Nash and others

Supreme Court of Michigan

June 6, 1862

Heard May 27, 1862

Appeal in Chancery from Ionia Circuit.

The bill was filed to foreclose a mortgage, which was given by Martin A. Nash and Hiram T. Barstow, as collateral to the following bond executed by them to complainants:

"Know all men by these presents, that we, Martin A. Nash and Hiram T. Barstow, of Ionia county, Michigan, are held and firmly bound unto Frederick Hall and Stephen F. Page, of the same place, in the penal sum of ten thousand dollars, to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated this 4th day of February, A. D. 1854.

"Whereas the above named Frederick Hall and Stephen F. Page have executed with us and delivered to Louis S. Lovell administrator of the estate of John C. Ball, deceased, four promissory notes, each of the sum of seventeen hundred and thirty-eight dollars and fourteen cents, with interest, and dated this day; one payable in four months from date, one payable in eight months from date, one payable in thirteen months from date, and one payable in eighteen months from date--all of which said notes were in fact made for the purchase of a stock of goods, by us of the said Louis S Lovell, administrator, as aforesaid. Now, the condition of this bond is such that if we pay the above described notes each within thirty days after they severally become due, with the interest thereon, then this bond is to be void, otherwise to be in full force."

At the time of filing the bill, complainants had not paid the notes mentioned in the agreement, but it appeared from the papers submitted on the computation of the amount due, that they had made payment pending the suit.

The defense made in the case, and the evidence, are sufficiently shown by the opinions.

Decree affirmed, with costs.

Bell & Soule and C. I. Walker, for complainants.

W. W. Mitchell and M. Wisner, for defendants.

Campbell, J. Martin, Ch. J. and Christiancy, J., Manning, J. concurred.

OPINION

Campbell J.:

This is a bill to foreclose a mortgage collateral to a bond conditioned to pay, within thirty days from maturity, certain notes signed by complainants jointly and severally with Martin A. Nash and Hiram T. Barstow, who were principal debtors--complainants being sureties. The bill shows a default in payment. The defense rests upon two grounds--first, that complainants have received from other securities and property belonging to Nash & Barstow, the full amount; and, second, that the bond is one of indemnity merely, and no damage is alleged.

The first defense is, in substance, that Nash & Barstow gave complainants an instrument whereby they were empowered to take possession of a stock of goods, and to raise the necessary amount by selling so many of them as were required. That while these goods remained the property of defendants, complainants took and sold enough to pay the debts. This defense is entirely disproved. It appears the instrument given was not a mortgage, but a mere naked authority. We had occasion to construe it in Holmes v. Hall, 8 Mich. 66. After Nash & Barstow had made an assignment, whereby they lost all ownership in the goods, the property was attached by their creditors. Complainants replevied it from the sheriff, but were compelled to respond to him for the value, because they had no interest which authorized them to take the goods from his possession. These facts negative the defense set up. They disprove it entirely, and are not merely in avoidance; and the objection made by the defendants, that they are not pertinent to the issue, is not well taken.

The bond is not a bond of indemnity, but is one conditioned to make payment of the notes within thirty days from their maturity. Such instruments have been so frequently construed and enforced that their effect is...