Waite v. Mathews

• Decision Date: 25 April 1883
• Citation: 50 Mich. 392,15 N.W. 524
• Court: Michigan Supreme Court
• Parties: WAITE v. MATHEWS.

15 N.W. 524

50 Mich. 392

WAITE v. MATHEWS.

Supreme Court of Michigan

April 25, 1883

Creditors have no rights as against property exempt from execution, and the officer making levy is as much bound to respect such exemption, where the property is that of a partnership, as in other cases.

A chattel mortgage, given in good faith, is void for want of immediate possession of the goods, only where rights have arisen in consequence, or injury resulted, in the interval before possession is given. Wallen v. Rossman, 45 Mich. 333, [S.C. 7 N.W. 901,] distinguished.

Error to Oakland.

H.C Wisner, for plaintiff and appellant.

Griffin & Dickinson, for defendant.

CAMPBELL J.

Plaintiff sued defendant in trover for the conversion of certain property on which plaintiff held two chattel mortgages, made by the firm of Watson & Waite, which had one place of business in Oxford, and one in Orion, Oakland county. Defendant claimed to have acted under executions from the United States court against a firm of which the mortgagors were members, on judgments upon debts older than the mortgages, and the chief controversy was upon the validity of the mortgages as against the creditors whom he represented.

One mortgage was made December 14, 1878, for $5,000. The other was given December 19, 1878, for $555. The mortgages were filed in Orion, December 23, 1878, but not in Oxford, the latter being the principal place of business. Possession was taken by the mortgagee in the latter part of December. An attachment was sued out January 4, 1879, and levied January 6, 1879, when a second writ was also issued and placed in defendant's hands with the first.

The court below held that the mortgages were absolutely void, as matter of law, for want of immediate possession, and took the case away from the jury, refusing any recovery for exempt property as well as the rest. So far as the exempt property is concerned, we can see no foundation for any such ruling. Creditors have no rights against exempt property, and the officer levying is bound to respect it in the case of partners as well as in other cases. Skinner v Shannon, 44 Mich. 86; [S.C. 6 N.W. 108.]

The other question was substantially decided in Kohl v Lynn, 34 Mich. 360, and Feary v. Cumings, 41 Mich. 376, [S.C. 1 N.W. 946,] where it was distinctly intimated that, in order to justify the application of the statute making mortgages, whether honest or not, absolutely void for want of filing or possession, some act must be done or some detriment sustained during the interval. As against all such rights a mortgage without such possession or filing is absolutely, and not merely presumptively, void, while conveyances not by way of mortgage are only presumptively void under such circumstances. Cooper v. Brock, 41 Mich. 488, [S.C. 2 N.W. 660,] and cases above...