Hubbardston Lumber Co. v. Covert

• Decision Date: 03 January 1877
• Citation: 35 Mich. 254
• Court: Michigan Supreme Court
• Parties: The Hubbardston Lumber Company v. Benjamin R. Covert

35 Mich. 254

The Hubbardston Lumber Company v. Benjamin R. Covert

Supreme Court of Michigan

January 3, 1877

Heard October 17, 1876

Error to Ionia Circuit.

Judgment reversed, with costs, and a new trial ordered.

Lemuel Clute, for plaintiff in error.

The points made for plaintiff in error are sufficiently indicated in the opinion.

Mitchel & Pratt, for defendant in error, to the point that where joint mortgagors reside in different townships, the mortgage must be filed in each township, cited: Kane v. Rice 10 B. R., 469; Rich v. Roberts, 48 Me. 548; Morrill v. Sandford, 49 Ib. 566; Rich v Roberts, 50 Ib. 395.

OPINION

Graves, J.

The company sued Covert in replevin for a quantity of lumber. He pleaded the general issue, and at the trial the judge directed a verdict in his favor. The company allege error.

It appears that from some time in 1871 Wilson Homer and one Henry P. Marcy or Holowil P. Marcy, it being disputed whether his name is Henry or Holowil, dealt in lumber as partners under the firm name of "Homer & Marcy." Homer resided in the town of North Plains, Ionia county, and Marcy, in Massachusetts. Marcy was here occasionally, and when so, took active part in the firm business. The firm got a large quantity of logs, and the lumber in question was made from them by the company, who claim to have bought the logs from Homer's wife, who, it is also claimed, held them on chattel mortgage made by the firm on February 8, 1875. The purchase by the lumber company from Mrs. Homer is alleged to have been made about July 28, 1875, and the sale is claimed to have been made with the assent of Homer, the resident member of the firm, Marcy then being and residing in Massachusetts. The mortgage purported to be by the firm, and was signed in the firm name, and is assumed on all sides to have been upon firm property and no other. A portion of the logs, at the making of the mortgage, were in the town of North Plains, where Homer, the resident member of the firm, lived, and the rest were in the town of Crystal, Montcalm county. The mortgage was filed in the clerk's office of North Plains, February 9, 1875, but was not filed in Crystal. The defendant was deputy sheriff and justified interference with the property under proceedings in two attachment cases, one being a case brought by Clark Thompson, and the other by the Clark & Rhinesmith Lumber Company. The suit in replevin is defended in the interest of Thompson. In the first case the affidavit for attachment was made March 2, 1875, and it described the firm of "Homer & Marcy" as debtor, but stated the names of the members as Wilson Homer, of Ionia county, Michigan, and Henry P. Marcy, of the state of Massachusetts. The writ was issued on the same day against Wilson Homer and Henry P. Marcy, and made returnable on the first Tuesday of April, 1875. The sheriff made return on the 4th of March and certified seizure of logs in the town of North Plains, and others in Crystal, Montcalm county, and to service on Homer, and further, that after diligent inquiry he was unable to find defendant Henry P. Marcy, in the attachment named, in his bailiwick. The printed record makes the return state that the levy on the logs in Montcalm county occurred on March 30, but this must be a mistake, since it was admitted that the writ was returned on March 4. It may be observed further that plaintiff's brief in one place states that the writ was returned on the 4th of April, but as it is immediately added, "thirty days before the return day named in it," the whole statement corrects itself. These inaccuracies are here noticed merely to call counsel's attention to the necessity for greater care concerning the records and briefs furnished the court. Such errors might lead to very detrimental results.

On the 9th of April declaration was filed. It contained the common counts with copies of two acceptances by Homer & Marcy of drafts upon them by Thompson.

Notice was published on the 15th of April and in each week afterwards until May 27th inclusive. July 28th affidavit was made and filed, showing the filing previously of proof of publication of notice on account of the absence of Henry P. Marcy; that more than thirty days had elapsed, and that neither defendant had appeared or pleaded; and on the same day default was entered.

August 4th a rule was entered making default absolute and referring it to the clerk to assess damages, and on the same day the clerk assessed the damages on the acceptances, called notes by the clerk, and reported the same at six hundred and sixty dollars and eighty-five cents. On the same day, also, final judgment was entered in favor of Thompson and against Wilson Homer and Henry P. Marcy for the amount reported by the clerk, and costs then taxed at twenty-seven dollars and thirty-six cents. Execution was issued August 11th, and about ninety-three thousand feet of lumber levied on, as lumber made by the company from the logs attached.

The replevin suit was commenced on interference with the lumber by the defendant as deputy sheriff under the levy.

The proceedings introduced in the attachment case of the Clark & Rhinesmith Lumber Company consisted of the writ, affidavit, return and inventory. The affidavit and inventory are not printed, and are understood as being beyond criticism. No pleading had been filed and no appearance made, neither had any publication been made. The writ was issued April 28, 1875, and made returnable the first day of June following, and it ran against Wilson Homer and Holowil P. Marcy, and was returned February 10, 1876, with a certificate of levy May 3, 1875, on a quantity of logs in North Plains and another lot in Crystal, Montcalm county, and of service May 4, 1875, "on the defendant Holowil P. Marcy, in attachment named," and that after diligent inquiry Wilson Homer, the other defendant, could not be found in the bailiwick. When the company were proceeding to make out their case and show their title to the lumber through purchase of the logs from Mrs. Homer, who they claimed held under the mortgage of the firm given on the 8th of February, 1875, and who, as they further claimed, had the assent of Wilson Homer, the resident member of the firm in making the sale, they offered the mortgage in evidence; but the court, on objection, excluded it on the sole ground, that as Marcy was not a resident of this state, but of Massachusetts, and the mortgage was only filed in North Plains, where Homer, the resident member of the firm, lived, and not in Crystal, where part of the property was, it was absolutely void as against attaching creditors. If the general theory of the court below were admitted, if it were conceded that in consequence of Marcy's non-residence the mortgage, in order to bind the logs in Crystal as against the firm creditors, should have been filed in that town, still I should not be prepared to say it was void as to the logs in North Plains, where it was filed and where Homer lived. It is very clear that a conveyance or encumbrance may be bad as to part of the property which is the subject of it, and good as to the residue; and the reason for the distinction is very strong where the object of the invalidating provision is to enable the public to know whether particular personal property is encumbered or not. If the mortgage in question had embraced no other logs than those in North Plains, no question could have been raised, since the filing would then have been sufficient under the general provision for filing in the town of the resident mortgagor, and also under the special provision for filing in the town where the property is in case of a non-resident mortgagor, and it hardly seems reasonable to say that the fact that property was included which then happened to be in another town destroyed the entire security and rendered it void as against that separate and specific property in respect to which the law was fully complied with.

If the logs in North Plains had been put in one mortgage and those in Crystal in another, the non-filing in the latter town would not have impaired the mortgage on the logs in North Plains, and as the invalidating regulation does not concern the concoction or execution, but allows the instrument to come into operation, and supposes it valid in its inception and contemplates something afterwards upon which its validity as to given property and as against given parties is to depend, I do not see why the instrument may not be considered as two mortgages, when the property in the one town consists of entire chattels distinct and distinguishable from the property in the other town. But passing this view, the more...