Lyon v. Balentine

• Decision Date: 14 October 1886
• Citation: 29 N.W. 837,63 Mich. 97
• Court: Michigan Supreme Court
• Parties: LYON and others v. BALENTINE and others.

29 N.W. 837

63 Mich. 97

LYON and others v. BALENTINE and others.

Supreme Court of Michigan

October 14, 1886

Error to Bay.

A. McDonell, for plaintiffs.

Simonson Gillett & Courtright and Holmes & Collins, for defendants and appellants.

SHERWOOD J.

From the record in this case, it appears that, for some time prior to 1880, the principal defendant, Marontate, was in the employ of Silas L. Balentine & Co., at Port Huron, the defendant Balentine being a member of that firm; that in that year Marontate engaged in general merchandise business at Bay City, commencing with a capital of his own not exceeding $1,000, and that his first purchases of goods to stock his store were made, beyond his capital, of Balentine & Co., on credit. He continued his business, and largely increased the same, a part of the time occupying two stores, until December, 1884; during all which time Balentine & Co. continued to be his creditors, and he also become largely indebted to others, among whom were W.D. Robinson & Co. James K. Burnham & Co., Edson Moore & Co., and the plaintiffs in this case,--the indebtedness to the latter being at the date last mentioned the sum of $6,857.32. It further appears that on the fourth day of December, 1884, Marontate's entire liabilities were fully equal to, and perhaps greater than, the value of his entire stock of goods, it aggregating to between thirty-five and forty thousand dollars; that at this time Marontate executed a chattel mortgage to Balentine & Co., to secure them, on his stock of goods, and placed the same on file in the proper office, said mortgage being given for $12,000. He then telegraphed Balentine & Co. what he had done, and Balentine came to Bay City, and received a duplicate of the mortgage. J.K. Burnham & Co., on being advised the same day of the existence of this mortgage through the commercial agency, at once sent their agent to Marontate, and he asked for a mortgage to secure the Burnham debt; this being refused by Marontate, unless the agent would allow the Robinson & Co. claim to be included. Those terms were accepted, and a mortgage executed to James K. Burnham & Co., and to W.D. Robinson & Co., covering the entire stock of goods, to secure both debts, amounting to the sum of $9,775.19, and duly filed. On the next day Marontate executed a third mortgage upon the same goods to Edson, Moore & Co. and the plaintiffs, to secure their debts. On the same day Balentine placed in the hands of the sheriff of Bay county Balentine & Co.'s mortgage, for foreclosure under the power contained in the mortgage. At the same time Burnham placed in the hands of the sheriff the Burnham & Co. mortgage, with instructions to foreclose the same for the mortgages therein named. Sale of the property was advertised to take place on both mortgages at the same place, on the thirteenth of December,--at 1 P.M. on the first, and at 9 A.M. on the second. The goods were sold under the Burnham and Robinson mortgage subject to Balentine & Co.'s mortgage which was stated to be $11,207, and Day, Campbell & Co., of Detroit, became the purchasers at such sale, at the sum of $3,100.

On the morning of the day of the sale of the property, and before it took place, the writ of garnishment in this case was served on defendants Balentine and Burnham. The affidavit upon which the writ was issued was made by John C. McLaughlin, agent of the plaintiffs, and charges that Silas L. Balentine and James K. Burnham had property, "moneys, goods, chattels, and effects in their hands and under their control belonging to the principal defendant, Marontate," as he believed, and had good reason to believe. The garnishee defendants filed their separate disclosures in writing, and were separately examined under the statute. At the instance of the plaintiffs, a statutory issue was framed for trial of the matters between the plaintiffs and garnishee defendants; and a trial thereof was had before Judge GREEN, by jury, in the Bay circuit, which resulted in a verdict for the plaintiffs for the full amount of judgment recovered in the plaintiffs' suit against the principal defendant, being $6,857.32. The garnishee defendants remove the case into this court by writ of error for review.

The record is full, and has been examined with care, but we do not think this judgment can be sustained. An actual bona fide indebtedness from Marontate to James K. Burnham & Co., and to W.D. Robinson & Co., is not disputed or questioned, nor that it was intended to cover the amount owing to both firms in the mortgage they received. It is not claimed this mortgage was defective in form, or in its execution. That a chattel mortgage given to several persons jointly may be made to cover separate debts is settled in this state in Adams v. Niemann, 46 Mich. 135, S.C. 8 N.W. 719; and that either mortgagee may enforce his own claim by foreclosure of the mortgage must, I think, be conceded on authority, (Herm.Chat.Mortg. 357; Burnett v. Pratt, 22 Pick. 556; Gilson v. Gilson, 2 Allen, 115;) and such mortgage may be foreclosed by the mortgagees jointly, (Wheeler v. Nichols, 32 Me. 233; Howard v. Chase, 104 Mass. 249.) If the mortgage, by mistake or want of knowledge at the time, has been given for more or less than the actual indebtedness, and no deception or fraud was intended by either party, it will not have the effect to invalidate the mortgage. Jones, Chat.Mortg. � 92; Desenberg v. Willison, 41 Mich. 156; S.C. 2 N.W. 201; Wood v. Scott, 7 N.W.Rep. 465; Kalk v. Fielding, Id. 296; Strauss v. Kranert, 56 Ill. 254; Blakeslee v. Rossman, 43 Wis. 116, 123.

The prior mortgage given to Balentine & Co. seems to have been properly made and executed, and it was competent for the second mortgagees to take subject to the Balentine mortgage, and such was the fact, as shown by the record. Jones, Chat.Mortg. � 492; Smith v. Smith, 24 Me. 555; Shoenberger v. Mount, 1 Handy, 566; Treat v. Gilmore, 49 Me. 34; Tuite v. Stevens, 98 Mass. 305; Newman v. Tymeson, 13 Wis. 172.

The mortgages taken by J.K. Burnham & Co. and W.D. Robinson &amp Co., and by Balentine & Co., were both duly filed as soon as made, and were in the usual form, authorizing possession to be taken of the property by the mortgagees, and sale thereof to be made as soon as condition broken. A breach in any one of the conditions entitled such possession to be taken, and foreclosure of the mortgage to be made, by the mortgagee. Leland v. Collver, 34 Mich. 418; Cassel v. Cassel, 26 Ind. 90; Jones,...