Littauer v. Houck

• Decision Date: 10 June 1892
• Citation: 92 Mich. 162,52 N.W. 464
• Court: Michigan Supreme Court
• Parties: LITTAUER v. HOUCK, Deputy Sheriff.

52 N.W. 464

92 Mich. 162

LITTAUER v. HOUCK, Deputy Sheriff.

Supreme Court of Michigan

June 10, 1892

Error to circuit court, Bay county; GEORGE P. COBB, Judge.

Action by Samuel Littauer against Henry Houck, deputy sheriff. Judgment for plaintiff. Defendant brings error. Affirmed.

Pratt & Gilbert, (Jas. Van Kleeck, of counsel,) for appellant.

Fatio Colt, (John E. Simonson, of counsel,) for appellee.

LONG J.

The defendant, as deputy sheriff, levied upon a stock of boots and shoes under an execution issued from justice court. The execution was in favor of Rindge, Bertsch & Co., and against Alfred Taylor and Gerald Fitzgibbon. The claim upon which the execution was issued was an account which accrued about September 1, 1889. The defendants in the writ, Taylor &amp Fitzgibbon, had been partners in the boot and shoe business in Bay City; but their partnership ceased April 15, 1889 Taylor continuing in the business. Alfred Taylor was a resident of West Bay City, where he had lived for several years. On September 6, 1890, the plaintiff sold to Taylor a quantity of goods, and took a chattel mortgage upon his stock for $8,024.19, payments to be made, $1,000 in 30 days, $1,000 in 60 days, and the balance in 90 days. The mortgage was filed for record in the office of the recorder at Bay City, instead of West Bay City, where the mortgagor resided at the time of its execution. After the defendant seized the goods under the execution against Taylor & Fitzgibbon, the plaintiff, claiming under his chattel mortgage, brought replevin and took possession of the property. On the trial the court directed verdict in favor of the plaintiffs for six cents damages. The only defense on the trial was that the chattel mortgage, under which plaintiff claimed, was not filed in accordance with the provisions of the statute, and was therefore void as against defendant's claim under the execution. It appeared upon the trial that Pratt & Gilbert of Bay City were attorneys for the plaintiffs in the execution, who resided at Grand Rapids. The claim was sent to Pratt & Gilbert for collection, and received by them November 27, 1890. About the 20th of November, and prior to the time of their receiving this claim, the plaintiff in the present suit had a talk with Mr. Pratt of that firm about purchasing some property from him, and told him of this mortgage which he held upon the stock of goods, and where the goods were situated, and the amount of the mortgage. The plaintiff's claim upon the trial was that, although his mortgage was not filed in the proper office, yet the plaintiffs in the execution could not set up that fact as a defense to the mortgage, for the reason that their attorneys and agents had actual notice and knowledge of the mortgage lien prior to the time of their account being put into a judgment, and of the levy of the execution thereunder. After the levy was made and the deputy sheriff had gone into possession of the goods, plain...