People v. Bristol

• Decision Date: 13 October 1876
• Citation: 35 Mich. 28
• Court: Michigan Supreme Court
• Parties: The People for the use of Benjamin F. Farrington and others v. Ulysses D. Bristol and others

35 Mich. 28

The People for the use of Benjamin F. Farrington and others

v.

Ulysses D. Bristol and others

Supreme Court of Michigan

October 13, 1876

Heard October 5, 1876; October 6, 1876

Error to Lapeer Circuit.

Judgment affirmed, with costs.

Gaskill & Geer and Charles Kudner, for plaintiffs in error, as to what constitutes a filing of a chattel mortgage, cited Bishop v. Cook, 13 Barb. 326; as to the invalidity of chattel mortgages as against subsequent purchasers and incumbrancers in good faith, where there has been neither a filing of the mortgage nor a change of the possession of the goods: Wood v. Lowery, 17 Wend. 492; Camp v Camp, 2 Hill 628; Thompson v. Van Veckten, 27 N. Y., 568; Parshall v. Eggert, 54 N. Y., 18; Tyler v. Strang, 21 Barb. 198; Farmers' L. & T. Company v. Hendrickson, 25 Barb. 484; 5 N. B. R., 218; 10 N. B. R., 469; that the mortgage in question here does not attempt to cover after-acquired goods, and if it did, it would not be binding as against the rights of third parties: Jones v. Richardson, 10 Met. 481; Pettis v. Kellogg, 7 Cush. 468; Fowler v. Hoffman, 31 Mich. 215; and on the question of confusion of goods, they cited: Fowler v. Hoffman, 31 Mich. 215; Willard v. Rice, 11 Met. 483; Loomis v. Green, 7 Greenl. 383; Brown v. Cobleigh, 11 N. H., 560; Weatherbee v. Green, 22 Mich. 317; and on the general subject they referred to: Conklin v. Shelly, 28 N. Y., 360.

W. W. & N. M. Stickney, for defendants in error, as to the validity of the clause permitting the mortgagor to retain possession of the goods and sell them in the usual way, cited: Kleiner v. Kalzenberger, 5 Am. 630; 20 Ohio St., 110; Gay v. Bidwell, 7 Mich. 319; James v. Haggeford, 3 Metc. 515; Barnard v. Eaton, 2 Cush. 294; Codman v. Freeman, 3 Cush 306; Mitchell v. Winslow, 12 Story 630; Abbott v. Godwin, 20 Me. 408; Melody v. Chandler, 12 Me. 282; Stedman v. Vickory, 42 Me. 132; and as to the sufficiency of the filing of he mortgage: Jordan v. Farnsworth, 15 Gray 517; and that the party guilty of a fraudulent confusion of goods loses all interest therein: Stephenson v. Little, 10 Mich. 44; Ryder v. Hathaway, 21 Pick. 298; Willard v. Rice, 11 Metc. 493; Hesseltein v. Stockwell, 30 Me. 237; Bryant v. Ware, 30 Me. 295.

OPINION

Campbell, J.:

This suit was brought on a sheriff's bond, to recover damages for the failure of an officer to enforce an execution against certain property sold under a chattel mortgage. In April, 1874, a mortgage was made by one Reed to Satterlee, Blackwell & Co., of New York, to secure seven hundred and fifty-two dollars and eighty-seven cents and interest. This was made upon "a general stock of merchandise, consisting of dry goods, groceries, boots and shoes, hats and caps, clothing, Yankee notions, and such other stock as is usually kept in a country store, together with the store fixtures and show cases not attached to the building, situated in Imlay City, Lapeer county, Michigan, in the store occupied by said Reed, on Third street." The mortgage, which was payable in thirty, sixty, and ninety days, authorized the property to be seized (but not sold before default) in case the mortgagees should deem themselves insecure, or if the property should be sold out of the usual course of business, Reed being allowed to make sales in the ordinary way, and required to pay the debt as it fell due therefrom.

On the 18th of August, 1874, the mortgage having become due, Stephen Henry, who was a deputy sheriff, was employed on behalf of the mortgagees to take possession of the mortgaged property and enforce the mortgage. He took possession of the whole stock, which is claimed to have been changed by sales and accessions, and having been informed by Reed that there were some new goods, requested the mortgagor to point them out, which he refused to do. Henry gave notice of the mortgage sale, but in the meantime, before the day of sale arrived, had attachments and executions placed in his hands against Reed. When the time of sale came, he sold, first, goods enough to pay the mortgage, and then applied the proceeds of the remainder upon the executions, leaving some of the execution debts unpaid.

The mortgage when made was at once duly filed with the town clerk, who in this instance was Reed himself. Reed received and properly endorsed it, without demanding or receiving his statutory fees. He omitted, however, to make the entries which he should have done, and did not put the document in the files of mortgages where it was customary to place such instruments, but left it in another pigeon-hole.

The plaintiffs claimed to recover on several grounds: First, because of the defective filing; second, because of the permission given to the mortgagor to sell, and his action thereunder; and, third, because goods were sold on the mortgage which were not included in it.

The filing was all that the law required to be done by the party. The statute simply requires the mortgagee to cause it to be "filed." When filed the clerk is required on payment of his fees to endorse the date of reception, and deposit the instrument in his office for inspection, and to enter the names of the parties in an alphabetical index.--C. L., §§ 4706-7-8. This mortgage was received and endorsed by the clerk without demanding his fees, and without any intention of demanding them. It in no way concerns any one else whether he is paid or not. And if he chooses to give credit for fees or to remit them, it cannot invalidate securities which he has accepted and filed. No one is bound under the terms of this statute to pursue any further investigations to see whether he does his duty. The statute seems to have required the deposit, not merely for notice to creditors and purchasers, but chiefly to show the transaction to have been actual and genuine, and to prevent secrecy and imposition, and to remove the presumption otherwise arising against good faith. It was to permit such mortgages to be given by men in business without requiring them to suspend their business or give up possession of their stock in trade, on which they rely to raise the amount of their debts.

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