Hyde v. Shank

• Decision Date: 02 December 1892
• Citation: 53 N.W. 787,93 Mich. 535
• Court: Michigan Supreme Court
• Parties: HYDE et al. v. SHANK, Sheriff.

53 N.W. 787

93 Mich. 535

HYDE et al. v. SHANK, Sheriff.

Supreme Court of Michigan

December 2, 1892

Error to circuit court, Osceola county; J. BYRON JUDKINS, Judge.

Replevin by Frank D. Hyde and George S. Hyde against Alonzo M. Shank sheriff, to recover property levied under attachment. Judgment for plaintiffs. Defendant appeals. Affirmed.

N. O. Griswold, for appellant.

Charles A. Withey, for appellees.

GRANT J.

Plaintiffs had verdict and judgment. The facts will be found sufficiently stated in 77 Mich. 517, 43 N.W. 890, when this case was first before the court. There are eight assignments of error, but we shall consider only those which appear to be argued in the defendant's brief.

1. The defense is that the mortgage was fraudulent as to creditors and that, if not fraudulent, it was paid at the time the suit commenced. Plaintiffs, the mortgagees, and Edget, the mortgagor, had both testified to facts which clearly showed that the mortgage was given for a bona fide indebtedness, and without any intent to defraud creditors. They also testified that there was about $1,900 due on the mortgage at the time this suit was commenced. Plaintiffs testified to this from their recollection. Their books were produced in court, which they said contained the true state of the account between them and Edget. These books had been used upon former trials of the case. Plaintiffs did not formally offer them in evidence, but tendered them to defendant's counsel upon the trial for their examination and use. The position of defendant's counsel appears to be that it was the duty of the plaintiffs to put these books in evidence, and that they were not entitled to recover without having so done. The position is not tenable. It was competent for plaintiffs to testify to the amount due. If the defendant questioned this, and believed that plaintiffs' books would show the contrary, it was his duty to examine them, and put them in evidence if he desired.

2. The court was correct in instructing the jury that the evidence would not warrant them in finding that the mortgage was fraudulent in its inception. The burden of proof in this respect was upon the defendant, and he produced no testimony showing fraud.

3. Edget had assigned to the plaintiffs a land contract, which was not fully paid. After this suit was commenced, and after the mortgage was foreclosed, plaintiffs paid the balance due upon it, and took a deed. The...