Williams v. Brown
| Decision Date | 14 September 1904 |
| Citation | 137 Mich. 569,100 N.W. 786 |
| Court | Michigan Supreme Court |
| Parties | WILLIAMS v. BROWN. |
Error to Circuit Court, Bay County; Theodore F. Shepherd, Judge.
Action by Ira E. Williams against John R. Brown. Judgment for defendant, and plaintiff brings error. Reversed.
Plaintiff's two sons owned and operated a mill, with a store in connection therewith. They did not own the land upon which the mill was situated. They also owned a half interest of the Harrison Cooperage Company, a copartnership. The firm owned the mill and machinery, but not the land on which the mill was located. The sons were married men, with families, and had no other business than that above described, which they had carried on since 1893. March 21, 1900, the sons executed to the plaintiff a bill of sale of all the above interests the consideration named being $5,833.73, of which plaintiff claimed he paid $3,000 in cash, and a receipt for $2,833.73 claimed to be due from them to him. The sons continued in possession of the property, and carried on the business in substantially the same way as before, under power of attorney given them by plaintiff. One Alderton was an indorser for the sons, paid the notes, and on July 21, 1900, brought suit by attachment against the sons, and attached the mill machinery above described, and the lands, which the sons occupied as homesteads. Soon thereafter plaintiff instituted this suit in trover against the defendant, the sheriff of the county, upon the theory that the defendant had converted the property, and was liable for its value. Defendant attached to his plea a notice that he seized the property under his writ of attachment; that judgment had been rendered therein for the plaintiff; that he could show that the property when seized was not the property of the plaintiff, but was the property of Charles and Lafayette, plaintiff's sons; and that plaintiff, as against the defendant, had no right, title, or interest in said property. Defendant gave evidence tending to show that before Alderton indorsed the notes, plaintiff said to the agent of Mr. Alderton's firm, which was then selling goods to the sons, that the sons did not owe him (plaintiff) anything. The record also states that 'the cross-examination of the plaintiff tended to show that there was no indebtedness from Williams Bros. (the sons) to plaintiff at the time of the making of the bill of sale March 21, 1900.' The record also states that defendant gave testimony tending to prove that the bill of sale was made with intent to delay, hinder, and defraud their creditors, and that Williams Bros. were not then indebted to the plaintiff in any sum whatever. The jury rendered a verdict for the defendant.
F. A. Lyon, for appellant.
James H. Davitt (A. J. Lacey, of counsel), for appellee.
GRANT, J., (after stating the facts).
Four questions are presented: (1) Was the notice of special defense sufficient to admit evidence of fraud? (2) Was certain testimony in regard to tax statements made by Lafayette admissible? (3) Was plaintiff entitled to recover the value of the exemptions of his sons? (4) Was the burden of proof upon the plaintiff to show the bona fides of the sale?
1. Plaintiff relies upon rule No. 7 of the revised rules of practice (subdivision 'b'), which reads as follows 'An affirmative defense, such as payment, release, satisfaction, discharge, license, fraud or failure of consideration in whole or in part, and any defense which, by other affirmative matter, seeks to avoid the legal effect of, or to defeat the cause of action set forth in plaintiff's declaration must be plainly set forth in a notice added to the defendant's plea.' The application of the rule to this case would be manifestly unjust. Plaintiff's declaration gives no intimation as to the source of his title. The defendant was not called upon either to plead to, or give proof of, his ground for attacking plaintiff's title until he had shown what his title was. If plaintiff had set forth a special count, alleging the purchase and bill of sale from his sons, the rule would have been applicable, and notice of the fraud would have been necessary. Wait v. Kellogg, 63 Mich. 144, 30 N.W. 80; Eureka Iron & Steel Wks. v. Bresnahan, 66 Mich. 489, 33 N.W. 834. The rule does not cover actions of trover and replevin, where the declaration does not allege plaintiff's source of title. Title in third persons may be shown in actions of trover to defeat plaintiff's action. Ribble v. Lawrence, 51 Mich. 569, 17 N.W. 60; Wessels v. Beeman, 87 Mich. 481, 49 N.W. 483.
2. The statute provides that no tax statement made by a taxpayer 'shall be used for any other purpose except the making of an assessment for taxes as herein provided or for enforcing the provisions of this act.' Comp. Laws, � 3846. When the tax...
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