Wright v. Starks
| Decision Date | 01 November 1889 |
| Citation | 43 N.W. 868,77 Mich. 221 |
| Court | Michigan Supreme Court |
| Parties | WRIGHT v. STARKS. |
Smith & York, (S. L. Kilbourne, of counsel,) for appellant.
E D. Lewis, (R. A. Montgomery, of counsel,) for appellee.
This suit is an action of trover, to recover for a flock of sheep alleged to have been converted by the defendant. The case was tried in the Ingham circuit, before Judge GRIDLEY, by jury and the defendant prevailed. The plaintiff brings the case to this court, and assigns 12 allegations of error.
The circumstances of the case, as the record presents them, are as follows: The parties to the suit were two neighbors, living near each other, and both were farming in Ingham county. In December, 1870, defendant, on account of failing health, went to Florida, leaving his farm, farming implements and stock in the care and charge of his three sons, George, Hiram, and Elsworth; George being the only one of age at the time. The three sons carried on the farm until defendant came home, in May, 1881. With a view of returning to Florida to live at this time, he sold his farm to his three sons, together with the personal property thereon, by contract, under which each son was to have an undivided third. The sons were all living upon the farm at the time. In the fall of 1881 defendant returned to Florida, and did not visit Michigan again until the summer of 1883. In the fall George bought of the plaintiff 77 sheep, at an agreed price of $167, and gave his note therefor, due in June following. George failed to pay this note when it became due, and it was allowed to run until the 21st of October, 1884, at which time he gave a chattel mortgage on 170 sheep, which were then upon the farm, (and George was there, living upon the same,) to secure the payment of the amount due on the note at that time,-$170.97; the mortgage covering, as claimed, the same sheep purchased of plaintiff, and their increase, and a small flock purchased by George and put with the others upon the farm. The mortgage was duly filed on the 22d of October, the day after it was given, and was made payable on or before the 15th of June, 1885. The defendant came to Michigan in the summer of 1884, and found things not agreeable among the boys on the farm. Hiram and Elsworth were not satisfied with the management of George; and it is claimed by the defendant that he bought all of George's interest in the farm and the personal property thereon on the 2d day of August, 1884; that he paid George $500 therefor, and gave his note for the same, due in two years, and took an assignment from George as follows: The note was offered in evidence, signed by Sylvester Starks, of the date, amount, and tenor and effect above stated. It appeared further from the testimony that after this assignment George was not at home much of the time that summer, but was at different places about the state; and that in the forepart of October, 1884, Sylvester Starks transferred his interest in the farm to Hiram and Elsworth. That defendant returned to Ingham county again about the time the mortgage became due, and at which time plaintiff saw him, and had a conversation with him about the sheep and mortgage, in which plaintiff says defendant told him he owned the sheep; said George had no right to mortgage them when he did. That after the mortgage became due plaintiff went to the farm to get his pay, or the sheep mortgaged, and defendant forbade his taking the sheep. That plaintiff then sent a constable to take them under his mortgage, and defendant again refused to allow them to be taken; and he then brought this suit to recover their value.
The case is somewhat peculiar upon the testimony. It is not entirely free from difficulties as presented. It presents some equitable features which cannot well be entirely left out of the consideration to be given to it. The plaintiff claims the debt he seeks to recover was known to the defendant and his three sons; and in whatever dealings he had with either of them, if their testimony is to receive credence, each have had the benefit of his property, to a certain extent at least, for which he has never held or had anything but George's note, or note and mortgage; and the property he let George have, with all of its increase, has never been out of the possession of Sylvester, or one or more of his sons. When George bought the sheep of plaintiff, so far as the record shows, he bought them for himself; and George, in his bill of sale to his father, does not appear to have included these sheep, and down to the time George left the premises he never claimed to the plaintiff that he had sold them, or any interest in them to any one; and when he gave the chattel mortgage to plaintiff, which was several weeks after the defendant claims he bought them of George, and after the bill of sale was dated, he says in it, the sheep "are free and clear from all liens, conveyances, incumbrances, and levies," and he further authorizes plaintiff, at any time when he should deem himself insecure, to take possession thereof. George told the draughtsman who filled out the mortgage, at the time it was made, that the mortgaged sheep were his; and there was testimony in the case that defendant, after the mortgage was given, said he had nothing to do with the sheep, and that he offered to give the plaintiff a...
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