Hammel v. First Nat. Bank

• Decision Date: 21 December 1901
• Citation: 88 N.W. 397,129 Mich. 176
• Court: Michigan Supreme Court
• Parties: HAMMEL v. FIRST NAT. BANK OF HANCOCK.

88 N.W. 397

129 Mich. 176

HAMMEL v. FIRST NAT. BANK OF HANCOCK.

Supreme Court of Michigan

December 21, 1901

Error to circuit court, Houghton county; Albert T. Streeter, Judge.

Action by Jacob Hammel against the First National Bank of Hancock. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Dunstan & Hanchette, for appellant.

Gray Haire & Rice, for appellee.

MOORE J.

The plaintiff obtained a judgment in the court below. The defendant has brought the case here by writ of error.

In December, 1896, one Eliassen was indebted to the defendant and upon that day gave it a chattel mortgage, covering all horses, wagons, sleighs, harnesses, etc., belonging to him also all that might thereafter belong to him. The mortgage was duly recorded on the day given, with the town clerk of the proper township, and kept properly renewed. In January 1901, the First National Bank of Hancock foreclosed the mortgage, took possession of all the chattels therein mentioned, and sold the same at public auction. November 16, 1900, Mr. Eliassen bought of the plaintiff three horses, and, at the same time, gave a chattel mortgage upon them and other personal property for the purchase price of said horses, which chattel mortgage was at once duly filed. Later the defendant foreclosed its mortgage, seizing and selling the three horses sold by Hammel to Eliassen. Hammel then sued the bank in trover and recovered a judgment.

The sole question involved is, which of these mortgages has priority. It is claimed by defendant that the record of the chattel mortgage is due notice to all who deal with the mortgagor as regards future-acquired property, citing Eddy v. McCall, 71 Mich. 503, 39 N.W. 734, and that this case is controlling in its favor. We cannot assent to this position. The sale by Hammel to Eliassen, and the giving of the chattel mortgage, were concurrent. They formed one transaction. Eliassen obtained no title freed from a lien. The only title he had was subject to the lien. It was not intended to give him any other title, and he did not expect to receive any other. We cannot express the rule of law which controls the case better than to quote from the opinion of Justice Bradley in U.S. v. New Orleans & O. R. Co., 12 Wall. 362, 20 L.Ed. 434, which reads, in part, as follows 'The appellants contend, in the next place, that the decision upon the facts was erroneous; that the mortgages, being prior...