McGraw v. Bishop

• Citation: 85 Mich. 72,48 N.W. 167
• Court: Supreme Court of Michigan
• Decision Date: 27 February 1891
• Parties: MCGRAW et al. v. BISHOP.

48 N.W. 167

85 Mich. 72

MCGRAW et al. v. BISHOP.

Supreme Court of Michigan

February 27, 1891

Error to circuit court, Kent county; M. C. BURCH, Judge.

Trover by Alexander McGraw and others against Louis K. Bishop. The judge directed a verdict for defendant, and plaintiffs appeal.

Fletcher & Wanty, for appellants.

L G. Rutherford and M. M. Houseman, for appellee.

GRANT, J.

One Harry Newman, being indebted to plaintiffs in the sum of $700, on the 26th of December, A. D. 1889, executed to them a chattel mortgage on his stock of goods, which consisted of gentlemen's furnishing goods, clothing, hats, caps boots, and shoes. This mortgage provided for future advances by the plaintiffs, and also covered after-acquired goods. On December 28th an unsecured creditor sued out a writ of attachment from a justice's court against said Newman and levied upon this mortgaged stock. The mortgage provided that the mortgagees might take possession whenever they should deem the claim secured by the mortgage to be in jeopardy. After the levy the plaintiffs placed a man in joint possession with the sheriff, by his consent, while the inventory was being taken. After the inventory was completed plaintiffs demanded possession under their mortgage. Defendant refused possession, and announced that he held the goods in defiance of the mortgage. On being informed that plaintiffs would bring suit against him, he asked plaintiffs to wait until he got his bond, and then he did not care if they did sue him. Plaintiffs, in the attachment suit gave the defendant a bond, and afterwards plaintiffs brought this suit in trover. The circuit judge directed a verdict for the defendant, and plaintiffs appealed. The circuit judge based his direction upon the ground that plaintiffs should have declared the mortgage to be due before they demanded possession. The attachment proceedings were void, and the circuit court was directed by this court, upon a writ of mandamus, to quash them.

The mortgage fixed no time when the $700 were to become due and payable. They, therefore, became due at once. Bearss v Preston, 66 Mich. 11, 32 N.W. 912. It is true that the mortgage contemplated that the mortgagor might continue in possession, and carry on his business in the usual way. It is unnecessary to determine in this case whether or not, as against the mortgagor, the mortgage might be foreclosed immediately after its execution for the non-payment...