Lucking v. Wesson
| Citation | 25 Mich. 443 |
| Court | Supreme Court of Michigan |
| Decision Date | 08 October 1872 |
| Parties | Joseph Lucking and another v. William B. Wesson and others |
Heard July 13, 1872
Appeal in Chancery from Wayne Circuit.
This bill was filed by Joseph Lucking and James Patton, against William B. Wesson, Alfred Goodman, and Ulenna Goodman. It alleges that the complainants had each obtained a judgment against Alfred Goodman, upon which execution had issued and been levied simultaneously upon all the goods, chattels, and furniture then in the Goodman house, a hotel in the city of Detroit; that Alfred Goodman, and his wife Ulenna, had previously executed and delivered to Wesson, a chattel mortgage upon said property, and also another to Walter Ingersoll, which had been assigned to Wesson, who, at the time of the levies aforesaid, held and owned both these mortgages; that these mortgages remained in full force, and had never been foreclosed when said levies were made; that the complainants jointly caused to be tendered to said Wesson the amount due him on said mortgages, which he received; that Wesson refused on demand being made, to assign the mortgages to complainants.
The prayer is that complainants may be decreed to have a lien on the property for the sum paid Wesson on said mortgages with interest; that they may be decreed to be the joint owners of said mortgages, and entitled to all the rights of said Wesson under them; that Wesson be decreed to execute an assignment of said mortgages to complainants jointly, and that he be enjoined from assigning or discharging the same.
A demurrer was interposed to this bill, which was overruled with leave to answer, and no answer being filed, decree was granted in accordance with the prayer of the bill, and the defendants appealed.
Decree affirmed, with costs.
Levi L Barbour, for complainants.
D. C Holbrook, for defendants.
The doctrine that the holder of a mortgage upon chattels becomes absolute owner of the property by breach of condition, is not admitted in this State. The mortgagee has a lien which he may foreclose in the several modes permitted by law, and from which the mortgagor may redeem: Van Brunt v. Wakelee, 11 Mich. 177. The true relation of the parties is that of debtor on the one side, and creditor secured by lien on property upon the other.
This being so, the holder of a subsequent lien must have the same right to protect his interest in the property that he would have had if the prior lien had been of any other nature. And to this end, he may pay off the prior incumbrance...
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Brink v. Freoff
...Van Brunt v. Wakelee, 11 Mich. 177, and that title did not pass to the mortgagee on breach of condition until after foreclosure, Lucking v. Wesson, 25 Mich. 443; Kohl v. Lynn, 34 Mich. 360; Caruthers Humphrey, 12 Mich. 270; taking another's property wrongfully and disposing of it in disrega......
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Haynes v. Leppig
...Wakelee, 11 Mich. 177; Bacon v. Kimmel, 14 Mich. 201; Worthington v. Hanna, 23 Mich. 530; Flanders v. Chamberlain, 24 Mich. 305; Lucking v. Wesson, 25 Mich. 443: Sheldon Warner, 26 Mich. 403; Cary v. Hewitt, id., 228; Macomber v. Saxton, 28 Mich. 516; Jewell v. Lamoreaux, 30 Mich. 155; Nels......
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James v. Wilson
... ... Williams, 39 N.W. 786; Hall v ... Godfrey, 47 N.W. 851; Moore v. Norman, 45 N.W ... 857; Flanders v. Chambers, 24 Mich. 305; Lucking ... v. Wesson, 25 Mich. 443. The second mortgagee may pay ... off the first mortgage indebtedness and be subrogated to all ... rights under first ... ...
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Pinch v. Willard
...holds that such an instrument is an exception to the rule that title does not pass under a mortgage. That such is the rule, see Lucking v. Wesson, 25 Mich. 443, Tannahill v. Tuttle, 3 Mich. 104, and Thurber v. Jewett, Id. 295; Flanders v. Chamberlain, 24 Mich. 305. See, also, Kohl v. Lynn, ......