Shepard v. Shepard
| Decision Date | 02 November 1875 |
| Citation | 33 Mich. 96 |
| Court | Michigan Supreme Court |
| Parties | William Shepard and another v. John B. Cross |
Heard October 29, 1875
Error to Clinton Circuit.
Judgment reversed, and one entered for the plaintiffs in error, with costs of both courts.
R Strickland, for plaintiffs in error.
A Stout, for defendant in error.
One of the plaintiffs in error (William Shepard) bought a horse of one Mary Love for one hundred and ten dollars. The bargain was made with her son, George Love, to whom Shepard paid ten dollars of the purchase price and made his note to him for the balance. By a subsequent arrangement this note was taken up and one made in lieu of it by Shepard to Mrs. Love upon a year's time with interest. Mrs. Love transferred this last note to Gordon Dunlap, and he recovered judgment upon it against Shepard before a justice. Upon tat judgment an execution was issued and placed in the hands of Cross, who was a constable, for collection. He levied on the horse before mentioned, and the plaintiffs in error replevied it and thereby regained possession.
The judge before whom the cause was tried without a jury found these facts, and also that the horse was exempt except for purchase money, and it was held that the plaintiffs in error were not entitled to recover, and judgment was given against them for one hundred and seven dollars and fifty-one cents and costs.
First. It is urged for defendants that Dunlap's judgment was for the purchase price of the horse, and that as a consequence there was no exemption and no right of action.
The suit by Dunlap was on the note as a distinct security, and he was a transferee and not the party to whom it was originally made. The consideration for which it was given was not sued for, and the judgment was not rendered for it. That consideration was not the subject of his purchase, and it was never transferred to him. What he obtained was Shepard's executory promise to pay one hundred dollars and interest, and nothing more. When Mrs. Love elected to transfer the note to him, she elected to consider the note as payment for the horse, and if there was any previous right in her, or in anybody else, to claim the horse upon execution as not exempt against the debt, it existed no longer.
In many cases where the seller of property takes the buyer's note for it he may waive recovery upon it and recover upon the original consideration; but a...
To continue reading
Request your trial
-
Breitung v. Lindauer
... ... Galloway v ... Holmes 1 Doug. (Mich.) 347; Thompson v. Howard 31 Mich. 309; ... Wetmore v. McDougall 32 Mich. 276; Shepard v. Cross 33 Mich ... 96; Rodermund v. Clark 46 N.Y. 354; Smith v. Baker 8 L. R ... (C. P.) 355; Castleman v. Holmes 4 J. J. Marsh (Ky.) 1 ... ...
-
Hanson v. Donkersley
...to collect the amount of his claim by a suit upon the note he was then entitled to pursue his remedy against the stockholder. Shepard v. Cross 33 Mich. 96. Perhaps more difficult question, hinted at upon the argument, is as to the effect of the laborer taking new promises to pay and thereby......
-
Johanson v. Rowland
...the assignee, the same as it would have been if it had been rendered in favor of the seller. A contrary doctrine is announced in Shepard v. Cross, 33 Mich. 96, Weil v. Nevitt, 18 Colo. 10, 31 P. 487. The holding of the Michigan and Colorado courts rests upon the theory that the assignee in ......
-
Johanson v. Rowland
...the assignee, the same as it would have been if it had been rendered in favor of the seller. A contrary doctrine is announced in Shepard v. Cross, 33 Mich. 96, and Weil v. Nevitt, 18 Colo. 10, 31 Pac. 487. The holding of the Michigan and Colorado courts rests upon the theory that the assign......