Kellogg v. Lovely
| Decision Date | 27 April 1881 |
| Citation | 46 Mich. 131,8 N.W. 699 |
| Court | Michigan Supreme Court |
| Parties | KELLOGG v. LOVELY. |
October 1878, defendant sold plaintiff a mare, buggy, and harness taking his note, with a mortgage upon the property, for the entire amount of the purchase price. At the time of the sale the mare was with foal, which was born in June following. July 1st the mortgage became due, and, not being paid, the mortgagee took possession of all the property, including the colt. Held, that the mortgage gave him a right to the colt and he was not guilty of trespass in so taking it.
Error to Shiawassee.
McBrider & Fraser, for plaintiff in error.
McKercher & Bush, for defendant in error.
The circumstances of this controversy are as follows. In October 1878, the defendant sold the plaintiff on credit a mare, buggy and harness for the agreed price of $250 and the plaintiff gave his note together with a mortgage on the property for the entire sum.
The mare was with foal and about the first of June following she dropped the colt. On the first of July the mortgage became due, and Kellogg failing to pay, Lovely proceeded to take the property. There was no dispute about his right to take the mare, buggy and harness, but the parties appear to have differed about the colt. Lovely maintained that the mortgage applied to it and gave him the same right to the colt that it did to the mare, but Kellogg contested this claim and contended that the colt being the offspring of the mare was his property and not having been born when the mare was purchased and the mortgage given was not subject to the mortgage.
The colt had not been weaned and was running with the mare and when Lovely drove her off the colt followed. Lovely soon afterwards proceeded to sell the whole property, the colt included, under the mortgage, and we gather from the case that it was bought in for him through an agent. The whole sum for which the property was struck off was $176, and shortly afterwards Kellogg paid the remainder of the debt. He then instituted replevin against Lovely before a justice of the peace to obtain the colt and it was seized on the writ and delivered into his possession. The justice entered a nonsuit against him him and Lovely waiving return of the colt the value was assessed at $55, for which Lovely took judgment. An appeal was made and the circuit court reduced the assessment to $30 and awarded Kellogg $78 costs and extinguished the former by applying an equal amount of the latter by way of set off. Thereupon Kellogg sold the colt and brought this action of trespass, counting on the transaction when Lovely took the mare on the mortgage. The justice gave judgment in Kellogg's favor for the value of the colt and Lovely appealed. The circuit judge ruled that there was no evidence of trespass and ordered a verdict for Lovely. It is not certain that the circnit judge was correct in the reason on which he proceeded. But whether he was or not is unimportant unless the result was wrong.
The fundamental question in the case relates to the effect on the legal ownership of the colt, of the sale of the mare to Kellogg and the mortgage back. In respect to tame and domestic animals the general rule is well understood, that "the brood belongs to the owner of the dam or mother," (2 Bl.Com. 390,) but there are many cases in which the rule is qualified in its application. It has been held and may be true in special cases that where the female is hired for a time limited and has increase during the term the hirer will be entitled to it and not the general owner. 2 Kent, 361; Edwards on B....
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