Wakeman v. Barrows
| Decision Date | 02 July 1879 |
| Citation | 41 Mich. 363,2 N.W. 50 |
| Court | Michigan Supreme Court |
| Parties | ALBERT C. WAKEMAN v. JOHN M. BARROWS. |
An assignee for the benefit of creditors, who, by his instrument of assignment, takes subject to a chattel mortgage on the property conveyed, cannot question the validity of such mortgage.
Error to Genesee _________ court.
J.L. Topping, for plaintiff.
Wm. Newton, for defendant.
Barrows, claiming title as assignee of Wright & Wakeman, for the benefit of their creditors, brought replevin for certain goods held by Wakeman under the chattel mortgage given by the assignors, and turned out by them to the representative of the mortgagee the day previous to the assignment. The assignment described the mortgaged goods, and added that they were "under conditional chattel mortgage to A. Wakeman, deceased, and now in their possession."
It is wholly unnecessary to discuss the various questions raised in reference to the validity and filing of this mortgage. There is no objection fatal to the plaintiff's right to maintain the action. He was the voluntary assignee of the mortgagors, and took the property subject to the mortgage. His title to the goods and right to maintain this action would not be superior to that of his assignors. He did not represent their creditors in such a manner as to entitle him to attack the mortgage. Creditors could question the validity of the mortgage only in proceedings brought to enforce their claims.
An assignee under the bankrupt law, or an involuntary assignee under a state statute, would occupy a different position, and the cases cited by counsel for defendant in error were all of this character. This plaintiff does not represent the creditors, and if he did he is in no position to question the validity of the mortgage. Voorhees v. Frisbie, 25 Mich. 476; Miller v. Babcock, 29 Mich. 526.
The judgment must be reversed, with costs, and a new trial ordered.
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