Manwaring v. Jenison
| Decision Date | 29 April 1886 |
| Citation | 27 N.W. 899,61 Mich. 117 |
| Court | Michigan Supreme Court |
| Parties | MANWARING v. JENISON. |
Error to Kent.
Godwin & Earle, for plaintiff.
J.C. Fitz Gerald, for defendant and appellant.
The plaintiff brought suit against the defendant, declaring in two counts,--one in trover for the conversion of two steam-boilers, one smoke-stack, one steam-engine, one stave-cutting machine, and one machine for dressing and circling heading, and the other in trespass for taking and carrying away the same property. The case was tried before the court without a jury. The court found the facts to be, in substance, as follows:
(1) On the twenty-eighth day of December, 1873, and for some years prior thereto, the firm of Haven, McKay & Co. were the owners of about two acres of land in the village of Grandville, Kent county, Michigan on which they had erected a steam stave and heading mill which they had run and operated for some considerable time prior to that date. Said mill was always used exclusively in the business of manufacturing staves and heading. The mill building, when completed, cost about $1,500. It was a stout frame, about 40 by 50 feet square, two stories high inclosed, having a shingle roof, and was built for the express purpose of being used on said land as a stave and heading mill, and to have placed therein all the machinery hereinafter referred to. The building was well adapted to this use. After the removal of said machinery, and at the date of removal, the building was of little value, not exceeding $200. The business of running the mill had proved unprofitable, and had been abandoned, Haven, Blake & Co. having failed in business. The firm of Haven, McKay & Co. upon the completion of said building, placed therein the following machinery, all of which was a part of the mill, and was necessary to constitute such mill, and to furnish it with steam power to operate, viz.: One steam-engine, weighing between five and six tons, resting upon a solid foundation of wood, brick, and stone laid in mortar, and was securely fastened; two steam-boilers, weighing each about five tons, each resting upon a foundation laid in brick and mortar, and both arched over with brick laid in mortar, and they could not have been taken out without taking down some portion of the building,--that is, without removing the siding from some portion of the building; one smoke-stack, connected and used with said boilers; one circle stave-cutting machine, weighing one and one-half tons; and one machine for dressing and circling heading, weighing about 800 pounds. Both these machines were securely bolted down upon the floor by bolts running through the floor, and through timbers below the floor, and these securely fastened. The machines were connected with the main shaft by belts, and were operated by the power furnished by the engine. All this machinery was well adapted to the use the firm was putting it to. This entire machinery remained in the same position as when first placed in the mill until its removal, in March, 1880, as hereinafter stated. On the twenty-eighth day of December, 1873, the firm of Haven, Blake & Co., composed of John V.D. Haven, Joseph Blake, Levi Day, and Dwight Rankin, purchased of said firm of Haven, McKay & Co., and the same was conveyed to them by deed, as real estate, said property, and they immediately took possession of the same, and operated and ran said mill until December, 1877.
(2) While Haven, Blake & Co. so owned the property, and on January 16, 1875, they procured the plaintiff and one Hiram Jenison to indorse their note for $3,000, payable to the order of said William Manwaring and Hiram Jenison. At its maturity this note, without going to protest, was renewed by the giving of a new note signed by Manwaring and Jenison, payable to the order of Haven, Blake & Co. This new note was renewed from time to time until December 28, 1877, when Manwaring was compelled to and did pay the sum of $1,900 thereon. At the time of the making of the first note Haven, Blake & Co. gave to said Manwaring and Jenison a chattel mortgage to save them harmless from loss for indorsing said note. Said mortgage was filed in the office of the clerk of the town of Wyoming, January 15, 1875, that being the place of residence of the mortgagors, and the property being also there situate. The chattel mortgage covered the property in issue in this suit, and about 300 cords of stave and heading botts lying in the mill-yard. The machinery is described in the mortgage as being "now in use in this mill in Granville."
(3) On the thirteenth day of January, 1876, said mortgage was renewed by the filing of the following affidavit:
--And also renewed again February 21, 1877, by the filing of the affidavit given below, as follows:
(4) The mill was closed up and stopped running, and the company became insolvent. The property in question remained in the mill, and on the thirtieth day of July, 1877, Manwaring procured a constable to advertise and sell the same; and on July 30, 1877, said constable posted his notice of sale, of which the following is a copy, which was the only notice given of said sale, to-wit:
At the time and place named said Jewell appeared and sold the property at auction, pursuant to the terms of the chattel mortgage to William Manwaring, he being the highest bidder therefor. The property was bid in at the sum of $274.90, and Manwaring received a memorandum of his purchase from Jewell. Previous to the sale the said Jewell seized the property under the chattel mortgage by going into the mill, July 30, 1877, and announcing that he seized the property under the mortgage aforesaid. At the time of the sale the property was in view of the officer, but no part of it was detached from the mill, and the plaintiff did not then, nor at any other time, attempt to detach or remove said property from the mill, or any part of it, and did not exercise, or attempt to exercise, any control over it, excepting that after his purchase he claimed to own the property, and offered it for sale.
(5) In the month of March, 1880, the defendant sold the property in question, which was still attached to the mill, for the sum of $1,400 to one Adolph Leitelt, which sum was paid by said Leitelt to defendant, the said property being then worth $1,400. Said Leitelt removed the property to Grand Rapids, and used it in his business. Nothing was done with it by defendant, except to sell it to Leitelt. Plaintiff never demanded it of defendant, nor in any manner attempted to get possession of it.
(6) The title to the property in question claimed by Luman Jenison at the time of his said sale was this, to-wit: The firm of L. & L Jenison, composed of Luman and Lucius Jenison, were creditors of Haven, Blake & Co. for goods and supplies furnished to said firm of Haven, Blake & Co. by said L.
& L. Jenison, commencing on the twenty-ninth day of December, 1873, and continuing along from time to time up to the first day of October, 1875, at which time the amount of such indebtedness was over $1,700.
On the twelfth day of June, 1876, the said firm of L. & L. Jenison commenced a suit against the said firm of Haven, Blake & Co. by attachment, to collect said indebtedness, and on the date of the issuing of said writ the same was duly levied upon the two acres of land aforesaid upon which this mill was situated, and of which this machinery was a part. This suit was duly prosecuted to effect, and on the fourth day of November, 1876, a judgment was duly rendered in favor of the plaintiffs and against the defendant for the sum of $1,793.17, damages and costs to be taxed. Execution was duly issued on this judgment November 4, 1876, and was duly levied upon said property on the eighteenth day of November, 1876; and the said property was duly advertised and sold by the said sheriff as real estate, by virtue of said writ, on the twenty-eighth day of May, 1877, to the plaintiff in said writ, for the sum of $900, the sheriff giving and causing to be filed the proper cirtificate of such sale; and subsequently, and on the nineteenth day of September, 1878, the property not being redeemed, he executed and delivered to said purchaser a deed of said property in pursuance of such...
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