Rosenfield v. Case

• Decision Date: 28 July 1891
• Citation: 49 N.W. 630,87 Mich. 295
• Court: Michigan Supreme Court
• Parties: ROSENFIELD et al. v. CASE.

49 N.W. 630

87 Mich. 295

ROSENFIELD et al. v. CASE.

Supreme Court of Michigan

July 28, 1891

Error to circuit court, Benzie county; FRED H. ALDRICH, Judge.

Action of replevin by Joseph Rosenfield and Louis May, executors of the last will of Moses May, deceased, against Albert B. Case. Judgment for plaintiffs. Defendant brings error. Affirmed.

McAlvay & Grant and Ramsdell &amp Benedict, for appellant.

G A. Wolf, for appellees.

MORSE, J.

This is an action of replevin brought for a stock of goods owned by Jacob May at Frankfort, Mich. The plaintiff had a mortgage on this stock, and there were also four other mortgages upon it. At the time of the trial these mortgages amounted to $6,129.34. The defendant is the sheriff of Benzie county and, at the time the writ of replevin was served, was in possession of the goods under attachment levies, and was taking an inventory of the same. Upon the trial the validity of the five mortgages was admitted by the defendant, and the whole question in issue was whether the sheriff levied in opposition to the mortgage of plaintiffs or subject to it. The jury found for the plaintiffs, and they had judgment.

We shall notice only such assignments of error as we deem important enough for discussion. Many are assigned that are of no importance whatever. Mr. McAlvay, of counsel for defendant, stated to the court that they did not contest the mortgages, but did contest the use the parties were making of the mortgages to defraud the unsecured creditors. Mr. Parker an attorney at law and a witness for plaintiffs, testified on cross-examination, that, at the time the sheriff levied the attachments, he was in possession of the goods under a foreclosure of a mortgage to one Otto Krause, one of the five mortgages heretofore referred to. He was asked what he had done under that mortgage. Mr. McAlvay stated, in support of this question, that he proposed to show that there had never been any legal foreclosure of the Krause mortgage; that Parker and G. A. Wolf, who were attorneys for all the five mortgagees, were acting jointly and in concert; that they did not intend to legally foreclose this mortgage, but took the steps they did in a pretended foreclosure for the purpose of using these mortgages to "freeze out" the balance of the creditors. Mr. Pratt, of counsel for plaintiffs, objected to the question on the ground that defendant's counsel had stated in the outset that they did not question the validity of plaintiffs' mortgage, or any of the mortgages; that, if the defendant intended to show a fraudulent use of the mortgages, then it must be that it was proposed to show that the sheriff levied in antagonism to the mortgages, and to maintain that he had a right to do so, because of such fraudulent use. But defendant's counsel maintained that they did not intend to claim that the sheriff levied in opposition to the mortgages, but subject to them, and that was their main defense upon the trial. This being so, it could not concern the jury whether a fraudulent use was made of the mortgages or not. If the sheriff levied subject to them, they were acknowledged by him to be lien upon the goods, having preference over his levies. The defendant could not blow hot and cold. He could not claim that he was entitled to recover, because he levied subject to the mortgages, and recognized their validity, and was, therefore, entitled to hold joint possession with them, and complete his inventory, and at the same time claim that he was entitled to hold the goods against the mortgages, because they were being fraudulently used to defeat the claims of other creditors. His levies were either made subject to the mortgages, or in opposition to them. He could not maintain both defenses, as they were antagonistic. The court was right in not permitting any evidence of the fraudulent use of the mortgages to be introduced. The court, however, said to the defendant's counsel that, if any fraudulent acts could be shown on the part of plaintiffs, such acts would be received in evidence. Nothing of this kind was offered. Defendant undertook to show by one Florshein the estimate of value that Jacob May put upon the stock of goods. This was properly excluded. The admissions of May could not bind plaintiffs, and the offered testimony was purely hearsay.

The following question was asked the defendant: "I will ask you whether or not he made any demand at that time on you, Mr. Case, for joint possession?" (referring to a conversation on the 7th of January, 1889, with G A. Wolf, attorney for plaintiffs, the day before the writ of replevin was served in this suit.) It was objected to as calling for a conclusion of the witness, and excluded by the court. We think the question was a proper one, but as he was permitted to and did give all the conversation he had with Wolf, and also testified that neither Parker nor Wolf asked him for joint possession before the writ of replevin was served, no error was committed to the prejudice of defendant.

The court admitted considerable evidence as to what was done with the stock of goods after they were replevied, but afterwards struck it out of the case. The rights of the parties in this suit must be fixed by the situation at the time the writ was issued. What was done with the goods thereafter was immaterial to the issue in this suit. Cary v Hewitt, 26 Mich. 228; Merrill v. Denton, 73 Mich. 628, 41 N.W. 823. Testimony was introduced of three or more appraisements made of these goods, touching upon their value. The...