Rollins v. Van Baalen

• Decision Date: 06 May 1885
• Court: Michigan Supreme Court
• Parties: ROLLINS and others v. VAN BAALEN and others.

23 N.W. 332

56 Mich. 610

ROLLINS and others v. VAN BAALEN and others.

Supreme Court of Michigan

May 6, 1885

Appeal from Wayne.

Dickinson, Thurber & Hosmer, for defendants.

CAMPBELL J.

Complainants who on January 31, 1885, sued out an attachment against Joseph Van Baalen, in the Wayne circuit court, for $532, and caused it to be levied on the same day on a stock of goods of said Joseph, in Detroit, by the sheriff, Mr. Stellwagen filed this bill February 2, 1885, for relief. The bill avers the execution on the twelfth of January, 1885, of two mortgages on the same property by Joseph,--one indemnity mortgage for $5,000 to Emanuel and Isaac Van Baalen to secure them on their joint bond with him as his sureties, given November 24, 1884, to Jacob Loewenstein, with whom he had been a partner, and whom he succeeded in business; and one for $2,500, to Emanuel, to secure the payment of three notes made in November and December previous, on which Emanuel was indorser, held by the Market Bank. It also avers that on the same twelfth of January, 1885, Joseph confessed judgment in favor of Emanuel for $2,200.50, and in favor of Isaac for $3,527.86; that the sheriff, Stellwagen, under executions on said judgments, levied on the property, and had advertised it for sale on the third of February, 1885, at 10 o'clock A.M.; and that he was in possession under said mortgages and such executions, and proposed to sell, and unless restrained, would sell, and place it beyond reach of complainants and other creditors. The property is averred to be worth considerably less than these securities, and to include all that Joseph owned. It is also averred that the debts indemnified against are not all due, and do not, as complainants are informed, reach the full amount secured, and that the notes were made to enable Joseph to raise money and place it beyond the reach of creditors. They also give some reasons for claiming the judgment claims to be fictitious and collusive.

A supplemental bill showed that on February 3d the mortgaged property was sold in bulk for $3,000 to Isaac Van Baalen, (through Emanuel,) subject to $3,000 on the $5,000 mortgage, and to $2,500 on the other. The original bill claimed that the transactions of January 12th operated as a general assignment, and were therefore void for preferences, and asked that the court appoint a receiver under the statute on that subject. It also asked in the alternative that the judgment be set aside, as well as the $2,500 mortgage, and that no sale be had on the $5,000 mortgage until the contingent liability of the sureties was fixed, and that a receiver be appointed to dispose of all the property, giving preference to complainant's attachment. The prayer of the supplemental bill was to reach the same substantial results against the defendants. Defendants demurred generally, and also specially for multifariousness, and for inconsistency in setting up an attachment against a general assignment. The court below dismissed the bill.

We can find no ground on which this bill can be sustained. The statute of 1879, under which the claim is set up, is "An act to provide for the regulation and enforcement of assignments for the benefit of creditors." How.St. � 8739 et seq. It provides that all such assignments "commonly called common-law assignments," shall be void unless made without preferences, and without certain formalities and concurrent action, and that they shall be so administered. All of the provisions relate to instruments which purport to be such assignments, made to some assignee named. The statute is very clear on this subject. The transactions, claimed now to amount to a general assignment, are one mortgage to two defendants, which is confessedly valid to some extent; one mortgage to a single defendant, which is attacked as invalid; and two confessions of judgment, claimed to be fraudulent, not joint but...