Walrath v. Campbell
| Decision Date | 14 October 1873 |
| Citation | 28 Mich. 111 |
| Court | Michigan Supreme Court |
| Parties | Stephen Walrath v. Donald Campbell |
Heard July 16, 1873 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]
Case made from Barry Circuit.
Replevin. Plaintiff alleges error. Reversed and judgment entered for plaintiff.
This was an action of replevin, brought by Walrath against Campbell, for one reed organ, certain carpeting, chairs, stove and pipe, one stand, and one bureau, which the plaintiff had purchased upon a sale made on an execution issued upon a judgment in his favor, against the trustees of First Orthodox Congregational Society, of Middleville, Barry county, Michigan.
The case was tried before the court without a jury. The plaintiff proved that this property was the property of said society, and in its possession in its church building, at the time of the levy and sale; the plaintiff immediately took possession of the same, and removed it to his house in Middleville, and that the defendant afterwards re-took it from the plaintiff's house, in the absence of the plaintiff, and without his assent. It also appeared that the plaintiff executed a replevin bond in this suit, and that the property was thereupon delivered to him, and, by the appraisal annexed to the return, it appeared that the property was appraised at one hundred and seven dollars and ten cents. But no other evidence was offered on the trial, by either party, of the value of the property.
The defendant claimed under a chattel mortgage executed to him Aug. 5th, 1872, a few weeks prior to the levy, by "The Trustees of the Orthodox Congregational Church of Middleville," purporting to convey to him all said property (described as being in the church edifice of the parties of the first part) and conditioned for the payment of two hundred and eight dollars within nine months of the date, with a provision that "if the parties of the first part shall sell, assign, or dispose of the whole or any part of said goods and chattels, or move or attempt to remove the same from the church, without the written assent of said Campbell," then he might enter upon the premises, or any place where the goods might be, take possession and sell the same, retaining sufficient to pay said two hundred and eight dollars and interest and charges, returning the surplus, if any. The attestation clause to this mortgage, was as follows:
The defendant proved from the county records a certificate, dated on the 17th September, 1859, of the organization of "The First Orthodox Congregational Society of Middleville, Barry county, Michigan," by which it appeared that C. G. Hill, D. S. Burgher, W. C. Pratt, A. A. Meade, and G. S. Pratt, were duly elected, on that day, as the trustees of said society; and he then offered to prove by defendant and other witnesses sworn for the defense, that Albert D. Badcock, Charles McQueen, Archibald McQueen, Elijah H. Waite, and William C. Pratt (the three former of whom executed the chattel mortgage in question), were the trustees of the said "First Orthodox Congregational Society of Middleville on the 5th of August" (when said mortgage was executed) "duly elected and qualified." This was objected to as inadmissible, on the ground that the record must be produced as the best evidence of the fact. This objection was overruled, and the evidence admitted. This is relied upon as error.
As preliminary to the introduction of the mortgage, and to show the consideration, its validity and good faith, the defendant was sworn in his own behalf, and testified that he was the pastor of said Congregational Society of Middleville, and had been so since about the first of January, 1872; that he was employed to act in that capacity by Albert D. Badcock and Charles McQueen in the said month of January, 1872; and that, for his services said Badcock and McQueen agreed to pay him a salary of seven hundred and twenty-five dollars per annum; that on the first day of August, 1872, there was due him upon his salary, about two hundred and seventy-five dollars, and that on three successive Sabbaths, in the month of July, 1872, he read to his congregation from the pulpit a notice of a meeting of the society, to be held on the first day of August. His counsel then asked him to state the contents of said notice, and the particular object for which such meeting was called; to which the counsel for plaintiff objected, on the ground that parol evidence was incompetent and inadmissible; that the written notice must be produced or its absence accounted for. This objection was overruled, and plaintiff excepted.
Defendant then testified that the notice so read by him was a notice that a meeting of the society would be held on said first day of August, then next, for the purpose of making arrangements for the liquidation of the society's indebtedness. He further testified that a meeting of the society was held on said first day of August, and was attended by himself, and also by Charles McQueen, Archibald McQueen, Albert D. Badcock, William C. Pratt, and Elijah H. Waite, all of whom were trustees of said society; that it was then and there talked over by those persons, that the said Stephen Walrath (plaintiff) had just recovered a judgment in the circuit court for the county of Barry, against said society, for nearly one thousand dollars, and that an execution would probably be taken out upon such judgment, and all the property of the society seized and levied upon by the sheriff, unless they took steps to forestall such action by giving mortgages upon all such property.
The witness was then asked by the counsel, whet directions, if any, the meeting gave to the trustees as to giving mortgages upon the property of the society; to which question the plaintiff's counsel objected, on the ground that it was not competent to prove by parol the transactions of such meeting; that they were necessarily a matter of record, and could only be proved by the records. This objection was overruled, and the plaintiff excepted.
Defendant thereupon testified that the persons composing such meeting directed the trustees of the society to execute a mortgage to him, for the sum of two hundred and eight dollars, upon the personal property of said society; also two mortgages upon the real estate of said society, one for three hundred and fifty dollars, to the Boston Congregational Union, to secure it for moneys advanced, and one for about two thousand five hundred dollars, to Charles McQueen, one of said society's trustees; but that no arrangement was made for securing or liquidating the plaintiff's demand; that such mortgages were afterwards, on the 5th of August, 1872, executed by said trustees and delivered to the respective mortgages; that witness, on the 9th of August, delivered the mortgage given to him to the township clerk.
Defendant next proved the filing of the mortgage with the clerk, and then offered the mortgage in evidence; to which the plaintiff's counsel objected, on the grounds: First, that it was not proved that the parties who made and executed the mortgage ever had any title to the property described in it, or any right to mortgage the same; that said paper, if a mortgage, was only the mortgage of the persons who signed it, and not of the trustees of "The First Orthodox Congregational Society of Middleville, Barry county, Michigan;" second, that no such society or corporation as "The Trustees of the Orthodox Congregational Church of Middleville, Michigan," had been shown to exist; third, that the statutes of this State regulating the organization and incorporation of religious societies, do not confer upon such societies the right or power to give mortgages upon personal property; and fourth, that it was not proved that there was any indebtedness from said First Orthodox Congregational society to the defendant, because it was not shown that the society or congregation had ever employed him as its pastor, or agreed to pay him any salary.
The plaintiff's objections were overruled, and the mortgage admitted in evidence, and the plaintiff's counsel excepted.
Upon this evidence the case was submitted to the circuit judge, who determined that the plaintiff, by his purchase at the execution sale, became the general owner of the property, but that defendant, by his chattel mortgage, had a special interest in, or lien upon it; that plaintiff should take nothing by his suit, and that defendant recover against the plaintiff the said sum of two hundred and eight dollars for the amount of his special property, with costs, etc. The plaintiff brings the cause up on case made after judgment.
Judgment reversed, and a judgment entered in this Court for the plaintiff in replevin for the recovery of the property, with his costs in both courts.
Harvey Wright, for plaintiff.
Norris & Blair, for defendant.
It is hardly necessary to say, that as the defendant could not in any event be entitled to recover beyond the value of the property, and there was no evidence of its value except that furnished by the appraisal made under and returned with the writ of replevin, which was only $ 107.10, the allowance of the amount of $ 208 (because that was the amount of defendant's lien) was clearly erroneous. Upon the hypothesis that the defendant was entitled to recover at all, his recovery should have been limited to the value as shown by the appraisal.
But there being no other evidence upon the point, we think this...
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