author: Campbell, J.

text:
    William H. Watkins v. Zebina H. Wallace.

      Judgments : In vacation. A judgment upon a bond and warrant of attorney as provided by the statute, may be entered in vacation.

      Process: Protection to .officer. A Sheriff will be protected in an action of trespass by an execution which is regular upon its face. People v. Mix., 6 Mich. lUk recognized and approved.

      Assignment for benefit of Creditors: Conferring power to compromise: To arbitrate: Property in a foreign jurisdiction. A general assignment is not invalid because it authorizes the assignee to compromise bad debts: nor because it authorizes him to submit disputes to arbitration: nor because some of the assigned property is land in another State, and the assignment is ineffectual to convey land in that State. Lawful acts done in this State cannot be made unlawful by provisions of law having no authority beyond the Territory and the State adopting them.

      Examination of witness: Befreshmg recollection. A witness may refresh his recollection by a paper purporting to be written by his agent and which he has acted on as authentic, and its handwriting need not be proved.

      Evidence : Intent of party. The testimony of the assignor as to his intent in making the assignment is admissible.

      Charge to Jury : Error, if it may mislead: Quality of proof in civil cases. It is error for a Court to charge a jury, so as to mislead them into the belief that more stringent proof-.was necessary than the law requires. In civil cases a jury cannot be required to discard testimony which produces a rational belief, because it does not conclusively establish the fact to be proved.

      Heard July 7 and 8,

      Decided July 12.

    Error to St. Joseph Circuit.
    This was an. action of trespass brought by Zebina H. Wallace claiming under a general assignment for the benefit of creditors, from Robert H. Morrison.
    The assignment contained the following special provision :

      “ If any dispute' or misunderstanding should at any time arise or exist respecting the title to any of the property hereby conveyed or transferred to the said Zebina H. Wallace, or respecting the debts owing to or by the said Robert H. Morrison, the said Zebina H. Wallace is authorized in his discretion to submit the same to and have the same determined by arbitrators or referees; and he is also authorized to compound and liquidate any of the said debts owing to the said Robert H. Morrison which he may deem bad or doubtful, for such proportion thereof and upon such terms as he may deem proper and most for the interest of the said creditors of the said Robert H. Morrison.”
    The defendant justified the taking of the property under an execution issued upon a judgment rendered in vacation in the Circuit Court for the County of St. Joseph in favor of James H. Bowen and others upon a bond and warrant of attorney against Morrison, the assignor, by virtue of which he had as Sheriff of St. Joseph County seized and sold the property. He also justified the taking by virtue of sundry writs of attachment in favor of Thomas W. Coughlan and others, against Morrison, all of which however, were issued after the seizure of which the plaintiff complained and on that account were at the trial excluded from the consideration of the jury.
    A portion of the real estate within the descriptive words of the assignment, being situated in the State of Indiana did not pass to the assignee; the laws of that State with reference to general assignments by debtors in embarrassed circumstances, not being complied with.
    On the trial, Morrison the assignor being under examination as a witness was asked — “Why did you make the assignment?” The question was objected to, but was allowed and the witness answered — “ I made it for the purpose of making a distribution of my property among my creditors and to relieve myself from my embarrassed condition.” While this witness was under examination a letter purporting to have been written by Lipman & Ellery was put into in his hands, the genuineness of it not having been proved, and he was requested, to “ Look at and see if that is the correct amount received by you.” The use of the letter as a memorandum for the witness was objected to by Defendants’ Counsel, but .the objection ¿vas overruled. Several witnesses were examined for the purpose of showing fraud in fact in the assignment. The jury found for the plaintiff below and a judgment being rendered on the verdict, the defendant below brings the cause into this Court by writ of error.

      Riley & Carpenter and H. F. Severens, for plaintiff in error.
    I. The assignment in question was void upon its face. A n assignment with preferences for the benefit of creditors must be one susceptible of being carried oxot according to its terms. For the supervision of the Courts over the trust is only for the purpose of enforcing it in the mode pointed out by the assignment; nor can the Courts interfere, so long as the assignee is proceeding in that mode. Hence the assignment should simply contain an effectual conveyance of the debtor’s property upon trust and declare the order of preferences. If it goes beyond this, and in the directions for the execution of the trust, authorizes the assignee to do that which the law would not authorize, without directions from the assignor, the assignment is' in judgment of law void as against creditors, as tending to hinder and delay them.—Dunham v. Waterman, 17 N. Y. 9; Nichols v. McEwen, 17 N. Y. 22; Jessup v. Hulse, 29 Barb. 539; s. c. 21 N. Y. 168; Rapalee v. Stewart, 27 N. Y. 310; Manning v. Pierson, 2 Mich. 445; Sutton v. Hanford, 11 Mich. 513; McIntyre v. Benson, 20 Ill. 501.

      The application of this principle condemns this assignment upon several grounds.
    1. It provides for the submission to arbitration of any question relating to the title of the assigned property, real or personal. Arbitration respecting the title to real estate is expressly forbidden by the laws of this state.—Comp. Laws, 1,358, Sec. 2; Olcott v. Wood, N. Y. 38.

      2. Again «the question of what was the homestead of Morrison, and how nruch should be included in it was one upon which a misunderstanding might arise, as also what personal property was exempt from execution. Certainly the assignor could not authorize the assignee to refer such questions to a reference or arbitration to which the assignor or his family should be a party in interest.
    3. This assignment also authorizes the assignee to compound the debts due the assignor, for such proportion thereof, and upon such terms as he may deem proper. This enables the assignee not only to determine what proportion he will take, but to determine also the terms of the compromise, which must upon familiar rules of interpretation relate to other matters than the proportion, (or the words are meaningless), and would enable the assignee to extend the time when the proportion must be paid.—Hutchinson v. Lord, 1 Wis. 286.

    Such an extension would be an available means in the hands of the assignee to get a larger proportion, and thereby increase the surplus for the assignor. This makes the assignment void within the principle of the following cases:—Sutton v. Hanford, 11 Mich. 513; Barney v. Griffin, 2 N. Y. 365; Nicholson v. Leavitt, 6 N. Y. 510-18; Porter v. Williams, 9 N. Y. 142; Brigham v. Tillinghast, 13 N. Y. 215; Burdick v. Post, 12 Barb. 168; s. c. 6 N. Y. 522; Rapalee v. Stewart, 27 N. Y. 310; Keep v. Sanderson, 12 Wis. 362.

    4. And it is a further rule governing this class of instruments, that the rights of parties must be definitely fixed by the assignment at the time of its execution and delivery, and it must be absolute and unconditional.—Pierson v. Manning, 2 Mich. 449—60, and cases there cited. Compare Heacock v. Durand, 42 Ill. 230.

    5. It has repeatedly been held that the assignor could not authorize the assignee to compound with creditors* Upon the same principle must stand the provision in this assignment authorizing the assignee to submit to reference any question touching the debts owing to the creditors of B. H. Morrison,
    6. These objections appearing upon the face of the instrument it was the duty of the Court to declare, as matter of law, that the assignment was void.—Pierson v. Manning, 2 Mich. 449; Sutton v. Hanford, 11 Mich. 513; Burrill on Assignments, (2d Ed) 431.

    7. Being void in part, it is void in the whole. Purporting to be 'a general assignment it must stand or fall together.—Pierson v. Manning, supra, 460; Nichols v. McEwen, 17 N. Y. 22; Kirby v. Ingersoll, Harrington Ch. 172.

    II. As to the effect of the Statute of Indiana upon the assignment,
    ■ 1. There was no question in respect to the fact, which was apparent upon inspection of the assignment and of the statute of Indiana, that it was not in compliance with the law of that State, and would be invalid there, unless it could be sustained there upon the ground that it was executed abroad m compliance with the law of' the place of execution. And if the property in Indiana, attempted to be assigned, were personal property, such result would upon the preponderance of authority, perhaps, follow. But it being of real estate the form and validity of any conveyance of it must depend upon the lex loci rei siten, and if the conveyance is forbidden by that law it is void in respect to such property.—Story’s Conflict of Laws, Secs.

      424, 428, 435; Rogers v. Allen, 3 Ohio 488; McCullough Heirs v. Rodrick, 2 Ohio 234; Loving v. Pairo, 10 Iowa 282; Fairchild v. Hunt, 1 McCarter N. J. Ch. 367; Bentley v. Whitmore, 3 C. E. Oreen N. J. Ch. 366.

    2. The law presumes that the assignor knew the law of the State where the real estate with which he undertook to deal was situated, and that the transfer must he in accordance with that law.—Merchant’s Bank v. Spaulding, 12 Barb, 302; Ex’rs of Combioso v. Assignee of Moffet, 2 Wash. C. C. R. 98.

    3. Then the question arises whether if the assignment is invalid as an entirety, it can be sustained as a partial one. 1 Am. L. Gas. 75—[4th Ed.); Burrill on Assignments, 128—(2d Ed.)

      i. This assignment purports to be a general one of all the property of the debtor. But it is not so and the assignor knew it. The result is that while on its face it purports to be a general assignment of all the property of the debtor, it leaves a part thereof so purporting to be assigned under the control of the debtor, which is the very case in Smith v. Mitchell, 12 Mich. 180.

    It can make no difference in the application of the principle how the result is brought about. It is the effect which the law looks at. —Pierson v. Manning, supra 455.

    5. The result is precisely the same here that it would be if in a general assignment the debtor should make reservations of portions of his property to himself in which case the assignment would be void.—Mackie v. Cairnes, 5 Cow. 547; Goodrich v. Downs, 6 Hill, 438.

    6. If the conveyance as made does not operate to convey all the property of the debtor, but leaves a portion thereof unaffected by it, it reserves a portion to the assign- or against the form of the deed, making it even more deceptive and fraudulent thau in the case of an actual reservation upon the face of the instrument.—Burrill on Assignments, 256, §§ 3 and 4, (2d Ed.)

      7. Again if the assignment had purported to be of property situated in this State, but so defectively executed that it was ineffectual to pass a part of the property, spurporting to be assigned, the assignment would have been void, and the case is not altered by the fact that Indiana property is beyond our jurisdiction and not subject to our laws.
    8. It has been repeatedly held that a preferential assignment is in judgment of law fraudulent when it is so drawn that it is ineffectual as a legal conveyance.—Baldwin v. Peet, 22 Texas 708; Barker v. Bean, 6 Fost. N. H. 412; Muzzey v. Noyes, 26 Vt. 462; Manning v. Pierson, sup.

    9. If the assignor were not chargeable with knowledge of the law of the State of Indiana, then inasmuch as upon the face of the instrument it appears that he intended to convey all his property, including the real estate of Indiana, and it is incapable of-being carried out, the assignment taken as a whole would operate such a distribution of the assignor’s property as he never intended, if his purpose was not fraudulent, and would destroy the whole scheme of the assignment and defeat the order of preferences.
    The consequences are shown by the proof in the case at bar, where one of the creditors seized by attachment a part of the assigned property in Indiana.
    We insist that to allow an assignment to stand under such circumstances as a partial one, would be contrary to the expressed intention of the assignment, and be unjust to creditors, and that as to them it ought to be declared void in law. — The case would fall within the condemnation of the principle applied by the Court in—Kirby v. Ingersoll, 1 Doug. 477-494 Leitch v. Hollister 4 N. Y. 211-15.
    The construction of the statute of Indiana tohen proved was a question of law for the Court, and if upon looking at the assignment, and the statute of that State it was apparent that the assignment was fraudulent or void in law it was the duty of the Court to-so declare.
    10. This assignment places the creditors in a position where they must, if they acquiesce in the assignment, be bound by it according to its terms. These Chicago creditors could not be heard to say, if they acquiesced in it, that it ought not to be completely and precisely executed.
    They would therefore be compelled to forego the right which tlrey have to, at least, an equal distribution of the property in Indiana, if thfey acquiesce in this assignment.-Rapalee v. Stewart, 27 N. Y. 310; Geisse v. Ball, 3 Wis. 367; White v. Banks, 21 Ala. 705; Hone v. Henriquez, 13 Wend. 240; Volenti non fit injuria.

    But being residents of a State foreign to this, they have the right to the benefit of the law of Indiana and the rights secured by its application to property thére, in the satisfaction of their debt.
    If, as is usually the case, the assigned property will not pay all the debts, the result is that the preferred creditors would very likely get all the property, including that in Indiana. A debtor has no right to place his creditors in such a position.—Wakeman v. Grover, 4 Paige, 41; s. 11 Wend. 203-21; Hyslop v. Clark, 14 Johns, 462; Averill v. Loucks, 6 Barb. 570.

    11. But the Court below not only refused to construe the statute of Indiana, but chai’ged the jury as matter of law that the fact that the assignment complied with our law but was in violation of the law of' Indiana would “have no tendency to invalidate the assignment in this State.” If the Court should surrender the question to the jury in this way as one of fact, we submit that proof that the assignment was a nullity when coupled with the legal presumption that the assignor knew that it was so, was pregnant evidence to show that the assignment was fraudulent in fact.

      12. The fact that the assignor resided, and the assignment was executed out of the State of Indiana, does not change the case, for the statute provision respecting the recording would operate nevertheless, and would in such case be satisfied by the recording of the assignment in the County where the land lies.—Scott v. Guthrie, 10 Bosworth, 408.

    III. We call the attention of the Court to the requests to charge the jury — “That if the deed of assignment does not operate to convey all of the property of the assignor, the law presumes he did not intend so to convey it,” — and —“ That fraud in fact, or an express intent to commit fraud is not necessary in order to render the conveyance fraudulent as against creditors. It is sufficient if the effect of the conveyance is to delay or hinder creditors in the collection of their debts.” Both of these requests contained principles of law settled by this Court and elsewhere, and we were entitled to the benefit of them, and especially as bearing upon the questions above discussed.—Pierson v. Manning—sup.; Leitch v. Hollister, 4 N. Y. 214; Nicholson v. Leavitt, 6 N. Y. 510; Buck v. Sherman, 2 Doug. 176; Mitchell v. Stiles, 13 Penn. St. 309; Gibson v. Love, 4 Flor. 217; Bowman v. Draughan, 3 Stew. Ala. 243; Arthur v. Com. & R. R. Bank, 9 Sm. & Mar. 394.

    IV. The attachment proceedings in favor of Ooughlan, Rundle & Co., were admissible. Defences were possible under one process which might not have been under the other. They were also admissible upon the question of damages.—Olcott v. Hanson, 12 Mich. 452.; Wright v. DeGroff, 14 Mich. 164.

    V. The Court erred in allowing the assignor to state to the jury what his intentions were in making the assignment. There are conflicting decisions upon this point, but it seems to us that the reasons for the exclusion of such a question are too strong to be overcome.
    VI. As to the letter of Lipman & Ellery, and the use allowed to be made of it by the assignor who was on the stand as a witness; — there is no principle on which the' witness could be permitted to use the letter as a memorandum, and there were fatal objections against such use. It was not a memorandum made by himself nor was it proved who wrote it, nor did the witness swear that he knew it to be correct when it was written. 1 Greenl. on Evidence, Sec. 487.

    VII. The Court erred in refusing to charge that it is the duty of the assignee, if he cannot sell the property at its fair cash value at private sale immediately, to sell at auction — that he cannot delay the sale for the purpose of retailing the goods, and that evidence of such delay would tend to show the assignment fraudulent. This rule was taken from the language of a distinguished judge— approved by Burrill in his work on assignments.—Hart v. Crane, 7 Paige, 87; Burrill on Assignments, 499, (2d Ed.)

    VIII. If the question of the validity of the assignment depended upon the secret purpose with which it was made, which secret purpose was to be proved by evidence aliunde, then although the assignor intended to have the assignment executed and carried out according to its terms, that would not be decisive "of the validity of the assignment as charged by the Court, for he may have intended this very thing as a means of furthering a secret purpose to hinder and delay his creditors.
    Indeed, if the question was one of fact for the jury upon extrinsic proof, we are at a loss to see how the Court could give such an instruction as matter of law. It was erroneous upon any view that can be taken of the subject.
    IX. The Court charged the jury that all legal intendments and presumptions are in favor of, the validity of assignments the same as other instruments. Whether this was true or not as a maxim of construction to be employed by the Court, (which we deny, see Gay v. Bidwell, 7 Mich.

      523,) it was wholly improper as an instruction to the jury. If the question of fact was for them, what had they to do with the intendments and presumptions of law ? The law neither intended nor presumed anything, but left the whole question with them.—Oliver v. Eaton, 7 Mich. 114 People v. Garbutt, 17 Mich. 27; Perrott v. Shearer, 17 Mich. 54.

    X. So of the next charge, that proof of the fraud “ must be clear and conclusive.” If the proof Satisfied the jury of the fraud, most clearly there is no rule of law that requires it to be “conclusive.” Gordon v. Parmelee, 15 Gray 413. Indeed, when the the whole question is surrendered by the law as one of fact, it is not so jealous and fickle as to resume and assert its dominion the instant the jury enter upon the inquiry.
    XI. The Court also erred in charging the jury that “ upon the execution of the deed of assignment by Robert H. Morrison, and the acceptance by the assignee, Z. H. Wallace, of the trust, the creditors of Robert H. Morrison became vested with an interest in the property assigned.” This was a petitio principii. They would not become vested with an interest in the property unless the assignment was a valid one, which was the-question being tried.
    XII. The judgment rendered in the case of Bowen Bros, v. Morrison was properly entered up in vacation, and properly signed by the Clerk, in the absence of the Judge.—2 Comp. Laws, §4,441; Trombly v. Parsons, 10 Mich. 272; 2 N.Y. Rev. St. 360, §§ 9 and 10; Manufacturers etc., Bank v. St. John, 5 Hill 497; Blakie v. Griswold, 10 Wis. 293; Lathrop v. Snyder, 17 Wis. 110.

      W. L. Stoughton, for Defendant in Error.
    The general power to assign property in trust for the benefit of creditors has been recognized and approved in the fullest manner, both by the Federal and State Courts, and by the most eminent American jurists.—Barr. on

      Assign., 17; Dey v. Dunham, 2 John. Ch. 182-9; 1 Am. Lead. Cases, 65; Pierson v. Manning, 2 Mich., 460. And the fact that the assignment was made by an embarrassed debtor to prevent a sacrifice of his property will not render it void.—Angel v. Rosenbury, 11 Mich. 241. No one but a judgment creditor can attack an assignment as fraudulent or invalid.—Burr, on Assign., 597; Hastings v. Belknap, 1 Den., 190; Rubens v. Joel, 3 Kern., 488; Caswell v. Caswell, 28 Maine, 233; Fox v. Willis, 1 Mich., 321,

    In this case the judgment upon which the Plaintiff in Error relied in the court below was, by his own showing, a nullity.—2 Comp. Laws, 1,207. The rendition of a judgment is a judicial act. No judicial power is conferred by the Constitution on Clerks of the Circuit Court.—Const., Art, 6, §. 6-11 and 12; Walby v. Callender, 8 Mich., 430.

    It is evident, therefore, that the plaintiff in error established no title to the goods in question, and a judgment ought not to be reversed when the result cannot possibly be changed.—Barton v. City of Syracuse, 37 Barb. 292; City Bank of Brooklyn v. Dearborn, 20 N. Y. 244 J Minn. Mining Co. v. Nat. Mining Co., 11 Mich. 186; Hayden v. Palmer, 2 Hill, 205; McDougal v. Flemming, 4 Ham. 389; King v. Kenney, 4 Ham. 81.

    I. As to the form of the deed of assignment.
    1. The clause authorizing the assignee to submit disputes or misunderstandings to arbitrators, does not invalidate the assignment. The assignee would have the same power without this provision.—2 Comp. Laws, 1,858; Burr. on Assign. 224; Mann v. Wilbeck, 17 Barb. 388; Vernon v. Morton, 8 Dana, 247.

    The fair and reasonable construction of the assignment is, that the submission should be in accordance with the statute, not in violation of it. Where an honest intent can as clearly be inferred from the language as a fraudulent one, tbe court is not at liberty to infer tbe latter.— Nye v. Van Husan, 6 Mich. 346.

    All claims relating to real estate, except estates in fee or for life, may be legally submitted to arbitrators. The clause is not, therefore, wholly inoperative; but even if it were, it would not avoid the whole assignment —Burr. on Assign. 222; Darling v. Rogers, 22 Wend. 483; Van Nest v. Yoe, Sandf. Ch. 4-6.

    2. The clause authorizing an assignee to compromise bad or doubtful debts does not render the assignment fraudulent or void.—Burr. on Assign. 225; Brigham v. Tillingham, 15 Barb. 618; Belows v. Patridge, 19 Barb. 176; Conklin v. Conrod, 6 Ohio St. 611; Dow v. Platner, 16 N. Y. 562.

    II. As to the offer of the plaintiff in error to justify under the attachment of Coughlan, Bundle & Co.
    This evidence was objected to because—
    1. The said attachment was issued and levied subsequently to the alleged trespass for which the action is brought. This is conceded.
    2. That it already appears that the property taken was sold under this execution.
    The Plaintiff in Error has failed to set out the execution and return. On exceptions every part of the charge must be presumed to be correct and warranted by the evidence so far as the bill does not show to the contrary.—People v. McKinney, 10 Mich. 54.

    It does not even appear that the Plaintiff in Error had the writ of attachment at the time the alleged trespass was committed. ■ And to say that a trespass can be justified because a writ was afterward placed in the hands of the trespasser, is contrary to all principle, reason, and authority.
    III. As to the ruling of the Court, in allowing the witness Morrison, to answer the question : “ Why did you make the assignment ?”
    The intent of the witness in making an assignment was a fact material to the issue before the jury, and it was competent for the witness to state such fact.—Seymour v. Wilson, 14 N. Y. 567; People v. Hart, 35 Barb. 630; Newman v. Crandall, 43 Barb. 448.

    IY. As to the use made of the letter of Shipman & Ellery to the witness Morrison. The letter was not read in evidence. It is immaterial whether the ruling of the Court was technically correct or not, as no injury was done.—Peck v. Snyder, 13 Mich. 21. The witness could use a memorandum to refresh his recollection, although not made by himself.—1 Greenleaf Ev., § 436.

    Y. As to the refusal of the Court to charge the jury that' the whole assignment was void because preferences among creditors are prohibited by the laws of the State of Indiana, where a part of the real estate of the assignor was situated: It cannot be claimed that this assignment is void in Michigan, because it is not in accordance with the statute of Indiana. This would be abrogating our own statute and giving effect to that of another State.—See Guillaudet v. Howell; July No. Am. Law Reg. 1867.

    This assignment cannot properly be said to be in violation of the statute of Indiana. The statute of that State cannot reach beyond its own territorial limits. It can neither provide for, nor prohibit an assignment in Michigan. It only governs cases where the assignor resides in that State.—2 Ind. St., G. & H. 115, § 2.
    The rules governing cases of this kind depend upon the character of the property assigned, and the residence of the parties claiming under or against the assignment.—Burr. on Assign., 360.

    Real estate is generally governed by the law of the place where it is situated. In regard to personal property tbe rule undoubtedly is that its alienation, by assignment or otherwise, is governed by the law of the owner’s domicil, subject to a single exception — that the foreign law must not interfere with the rights of the citizens of the States where the transfer is sought to be carried into effect.—Burr on Assign., 362; Story on Conjl. of Laws, §29 400, 404, 420 and 566; Homes v. Ransom, 4 John. Ch. 460; Whipple v. Thair, 16 Pick., 25; Daniels v. Willard, 16 Pick. 36; Burlock v. Taylor, 16 Pick. 335; 22 Pick. 248.

    And this exception does not - extend to a chose in action.—See Guillaudet v. Howell, and cases there cited.

    VI. As to the refusal of the Court to charge the jury in general and unlimited terms, that an assignment which is void in part is void in the whole: this is nor the law.
    An assignment, when not actually fraudulent, may be void in part and valid in part, or void in respect to one class or kind of property and valid as to another.—Burr. on Assign., 444-6; Darling v. Rogers, 22 Wend., 483; Rogers v. DeForest, 7 Paige, 272. In Pierson v. Manning, 2 Mich., 460, the Court says: “Where an assignment is fraudulent as to any of its provisions, it is void in toto.” In this case there were fraudulent conditions. The case of Kirby v. Ingersoll, 1 Doug. 477, and Har. Ch. R., 172, was held fraudulent and void because made by one partner in fraud of his co-partner. In this class of cases there is said to be fraud on the face of the deed.—Burr. on Assign., 430.

    Even where part of an assignment is declared inoperative and void by statute, the rest will stand unless the statute declares the whole to be void.—Burr. on Assign., 442; Anderson v. Hook, 9 Ala., 704; Darling v. Rodgers, 22 Wend., 483.

    VII. As to the refusal of Court to charge the jury “That if the deed of assignment does not operate to convey all the property of the assignor, the law presumes he did not intend to convey it:” The full extent of the rule is, that a man is presumed to intend the probable consequences of his act.—1 Greenleaf Ev., § 81; Van Pelt v. McGraw, 4 N. Y., 110.

    The effect of the Indiana statute upon the property in that State cannot be said to be the probable consequence of his act.
    The law of a sister State is presumed to be the same as our own, unless the contrary is shown.—Grane v. Hardy, 1 Mich., 56.

    The charge asked for related to the evidence of the Indiana statutes, and must be constructed with reference to it.—Angel v. Rosenbury, 12 Mich., 241; People v. Scott. 6 Mich., 287.

    VIII. As to the refusal of the Court to charge the jury: — “That fraud in fact or an express intent to commit fraud is not necessary in order to render the conveyance fraudulent as against creditors. It is sufficient if the effect of the conveyance is to delay or hinder creditors in the collection of their debts.”
    If the effect of an assignment is to hinder, delay or obstruct creditors, it is not therefore void.—Hollister v. Loud, 2 Mich., 316-319; Sutten v. Hanford, 11 Mich., 513-520.

    IX. As to the refusal of the Court to charge the jury: “That it is the duty of the assignee, if he cannot sell the property at its fair cash value, immediately to sell at auction. lie cannot delay the sale for the purpose of retailing the goods; and if the jury find that in this case the assignee did delay the sale for the purpose of retailing, this would be evidence tending to show an intent to hinder and delay creditors, which would make the assignment void.”
    Two distinct propositions are embraced in this request, and if the Court was correct in either, the charge will be sustained.
    1st. Is it the duty of the assignee to sell immediately ? Such, a rule would defeat tbe object for which an assignment is made.—Hawkins v. Alsten, 4 Ired. Eq., 137; Haynes v. Crutchfield, 7 Ala., 187; Duboise v. Duboise 7 Ala., 235; Hollister v. Loud, 2 Mich., 321.

      2. Would tbe delay of tbe assignee be evidence of an intent to hinder and delay creditors which would render the assignment void.—Baldwin v. Buckland, 11 Mich., 389; Hollister v. Loud, 2 Mich., 309; Suydam v. Dequindre. Har. Ch., 347; Burr. on Assign., 442; Browning v. Hart, 6 Barb., 91; Shattuck v. Freeman, 1 Met., 10; Knapp’s Assignees v. Sherk, 13 Penn. St., 589; McGuire v. Faber, 25 Penn St., 436.

      X. As to the right of the assignee to recover in this form of action, the value of the goods. By an assignment the legal title passes to the assignee and he is clothed with the necessary power to execute the trust.—Burr. on Assign., 486; Woodard v. Marshall, 22 Pick., 474; Nye v. Van Husan, 6 Mich., 343; Platt v. Scott, 17 N. Y. 478.

      XL All legal intendments and presumptions are in favor of the validity of assignments the same as other instruments. —Burr. on Assign, 427; Turner v. Jay cox, 40 Barb., 164.

    XII. Fraud will not be presumed upon slight circumstances ; the proof must be clear and conclusive.—Buck v. Sherman, 2 Doug., 176; Baldwin v. Buckland, 11 Mich., 389; Hubbard v. Taylor, 5 Mich., 155; Orr v. Lacy, 2 Doug., 230.

    XIII. The execution, delivery and acceptance of the deed of assignment create at once the relation of trustees and cestui que trust between the assignee and the creditors.—Burr. on Assign., 352; Hall v. Denison, 17 Vt., 310; Ingram v, Kirkpatrick, 6 Iredell, Ch. 452.

    XIY. The Court charged the jury according to the request of the Plaintiff in Error on all the material points fully as strong as the law will warrant. And there is nothing in the rest of the charge, except the question as to the effect of the Indiana statute, which could have changed the result. Even an erroneous charge which could not affect the verdict is no ground of error.—Clark v. Moore, 3 Mich., 55; Cummings v. Stone, 13 Mich., 70; People v. Scott, 6 Mich., 287.

   Campbell, J.

Wallace being general assignee of one Bobert H. Morrison, Watkins as Sheriff levied upon a portion of the assigned property under an execution against the assignor, claiming the assignment to be void as against creditors.

This is an action of trespass, brought by the assignee against the Sheriff for the seizure. Judgment was recovered against the latter in the Circuit Court, and the case comes up on writ of error and exceptions.

A preliminary question is suggested upon the record— whether the Sheriff had such process as would justify him. The execution in his hands was issued upon a judgment rendered upon bond and warrant of attorney in vacation.

The judgment was rendered in strict accordance with the statute, and the bond and warrant were both made under the existing laws authorizing such judgment. We do not perceive any reason why such a remedy by agreement is not valid. The proceedings are no more objectionable than statutory foreclosures, where a remedy by agreement in a statutory form, has always been regarded as valid. A party may undoubtedly in civil matters waive his judicial privileges, and must be bound by his agreement when made and enforced according to law. We think the judgment valid.

Had it been irregular, the execution, being in due form, would protect the Sheriff from being a trespasser.—People v. Rix. 6 Mich. R. p. 144.

The questions presented relate chiefly to the validity of the assignment, and to charges made or refused by the Court.

It'is claimed the assignment is void upon its face, because it authorizes compromises of bad debts, and because it allows the assignee to submit to arbitration disputes concerning the title to property, and respecting debts.

The power to compromise doubtful debts is one which is useful if not necessary to enable an assignee to close up the estate. It would be absurd to require suits to be brought where there was no reasonable hope of collection. Such debts can generally be managed better by a good business man than by legal process. There is no authority for holding such a provision fraudulent.

The same reasoning applies with force to the clauses allowing arbitration. If there should be cases where the law does not authorize them, we must presume that the assignee will apply a general power, which can have a lawful operation, to lawful purposes. Nye v. Van Hasan, 6 Mich., 346. We cannot presume he will act fraudulently, and the provision being susceptible of honest application, cannot be said to have that necessary evil tendency which justifies the inference of a fraudulent intent.

Some of the assigned property is land in Indiana, and the laws of Indiana, as shown in proof, do not authorize such an assignment as was made. And it is claimed that the assignment must be treated as if made with the intent to have it operate in Indiana against the laws of that state, and as therefore fraudulent.

We can see no force in this suggestion. The fact that an instrument cannot be enforced in another state is no reason why it should not be enforced here. Even an assignment made under the direction of a Court here would not necessarily be enforced elsewhere. If -foreign insolvency and bankruptcy assignments are ever recognized it is only by comity and not by necessity. To allow the laws of other States to control the legality of the acts and contracts of our own citizens in their domestic operation, would violate- every principle of governmental independence. We cannot compel others to enforce transfers of property within their borders, contrary to their own laws, and we cannot suffer lawful acts done here, to be made unlawful by provisions having no authority beyond the territory of the state adopting them. If no assignment is valid which is not valid wherever the- debtor has property, there would, be very few valid transfers of that sort. But the only pretext we can have for setting aside an assignment is because it violates our laws, and our laws cannot be violated by a disregard of any but our own policy, and we have no call or jurisdiction to enforce any external and entirely foreign policy with which we have no concern.

The assignment is not void for any of these causes. It can only be defeated by fraud in fact.

It is alleged as error that the Court allowed the assignor to answer what his intentions were in making the assignment. The main inquiry in the case was concerning this intention. Intention is generally proved by circumstances, because usually there is no other mode of proof. But when the only person who knows the fact is accessible as a witness, his answer must necessarily be more direct evidence than any other; and if there is any reason to suspect his candor, the jury can make all the allowances called for by his position and demeanor. The evidence was admissible.

He was also allowed to testify to the amount which he had received for certain stock sold, by referring to a letter purporting to have been written by his selling agents, but which was not proven to have been in their handwriting. But as the letter was the document which he received as containing the account of sales, there could be no better means of refreshing his recollection. It was the very document he had acted on at the time as authentic.

We think, however, that in charging the jury concerning the proof of fraud, the language used had a .tendency to mislead the jury into a belief that more stringent proof was necessary than the law requires. The Judge charged them that “ fraud will not be presumed from slight circumstances, the proof* must he clear and conclusive.”

It is not to be denied that such language has been frequently used by Courts, and when used by them it expresses an idea which means no more than that the proof must be such as to create belief and not merely suspicion. But juries cannot be expected to be familiar with the technical and stock phrases of the bench and bar. And as there is a well settled popular understanding of the different degrees of proof required in civil and criminal trials as a basis of conviction, a jury instructed to act only on conclusive evidence could hardly fail to suppose they must disregard all balancing of evidence, and require a case absolutely free from any doubt. No such rigid rule prevails in any civil case. Common sense teaches every one to be cautious in arriving at conclusions which are prejudicial to character and honesty, but if the testimony produces a rational belief, a civil jury cannot be required to discard it because it is not conclusively established. We think the instruction erroneous, as calculated to mislead the jury as to the amount and quality of proof required; and that for this error, the judgment must be reversed and a new trial granted.

There are some other questions of minor importance not likely to arise again, which we do not think it necessary to discuss.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    Daniel Wheeler v. Perry Wilkins.

      0ase made. The practice of resorting to “case made” is quite as appropriate as that by writ of error, to review the action of a Circuit Judge.

      Case made: how certified. Since the statute has confined “ cases made,*’ to law ques. tions, less strictness is required in the form of certifying them, than when they could also bo used for the review of facts.

      Return by Deputy Sheriff. A return to a writ may be signed by a Deputy Sheriff in his own name. — Callender v. Olcotts 1 Mich. 3UU.

      Bond in Replevin; Taken by Deputy Sheiiff. A Bond in Replevin running to a Deputy .Sheriff in his own name is a substantial compliance with the statute.

      Appearance to defective process. A general appearance by a defendant, pending a rule granting the plaintiff leave to amend, is not a waiver of the defect sought to be amended.

      Service of Summons: Delivering copy to defendant's wife. The return of a service of summons in replevin upon a defendant “by delivering a certified copy of said writ to his wife personally,” it not appearing that the defendant could not be found, and -that the service was at his dwelling, is bad.

      Discontinuance in Replevin: Election: Assessment; Damages: Notice. When a plaintiff suffers a discontinuance; the defendant must elect whether he will claim or waive a return; and the election must be entered before proceeding to the assessment of damages; of which assessment the notice required by the statute must be given.

      Heard July 9.

      Decided July 12.

    Case made from Cass Circuit.
    This was an. action of Replevin brought by Daniel Wheeler against Perry Wilkins. The writ was executed by the Sheriffs Deputy who returns — “I delivered the goods and chattels so replevied to the said Daniel Wheeler, he having first executed to the Deputy Sheriff of said County the required bond under the statute with Nathan Phillips and Levi Henderson of said County securities and I do also further return that on the 22nd day of June aforesaid according to the command of said .writ, I summoned the within named Perry Wilkins by delivering a certified copy of said writ to his wife personally.”
    “ J. A. Fuller, Deputy Sheriff.”

    At the next term of the Court (in July) Muzzy and Knox for defendant move that said replevin suit be dismissed for the following reasons, to wit:
    1st. Because the writ of replevin issued in this case, has not been served by the Sheriff of said Court.

      2nd. There was no bond given to the Sheriff.
    3d. Because the service of said writ was illegal and void. IJpon hearing the motion to dismiss, the Court ordered that it be granted and the writ quashed, unless the plaintiff shall within ten days cause the return to be amended. Four days later the defendant’s attorneys give a general notice of retainer in the cause. Subsequently, the plaintiff filed and served a declaration. The return to the writ was not amended nor was any plea put in by the defendant. At the September term, after hearing the parties, the Court granted a motion to non-suit the plaintiff for non compliance with the order to amend the return, and, at the subsequent term without a demand or waiver of a return of the property, and without notice to the plaintiff, proceeded to assess the defendant’s damages for which judgment was rendered; which judgment is brought to this Court for review.

      Edward Bacon, for plaintiff.

      F. Muzzy, for defendant.
   Campbell, J.

This cause is brought up on case made after judgment for damages in favor of a defendant in replevin, the plaintiff having had judgment of discontinuance rendered against him.

It is objected that the case is not properly authenticated, and that the remedy is not adapted to review the judgment.

The return is very slovenly and requires some indulgence to give it a very satisfactory standing. But we think it appears unmistakably to have been intended for a case made. It is certified to have been settled and signed by the Judge, and as we must assume his official acts to have some meaning, there is no other instrument with which it can be made to correspond. Before the law was repealed which provided for making cases to review facts, as well as law, a fuller certificate was necessary to define the character of any such document, but now, when only law questions can be reached by them, there is less need of extreme strictness. And.while good practice requires more fulness of description, we can by intendment recognize this as a statutory case. The clerk’s certificate is so folded as to appear in the middle, instead of at the end, of the papers but we have no doubt he intended to designate the proper documents for review.

It is claimed, however, on the strength of Hollister v. Beeson 11 Mich. R., 193 that the judgment cannot be brought up in this way. The cases are distinguishable. There nothing had been passed upon by the Judge, as the judgment was on a Cleric’s assessment, and the chief reliance was on a motion to set aside the judgment, which could not. come up on error at all. The language of Judge Manning in that cause was somewhat broader than was necessary but he points out the distinction between judgments which have involved the personal action of the Judge, and those which have not been based upon his personal intervention.

In the present case the action complained of was all had by the Circuit Judge himself and we think the practice of resorting to case made quite as appropriate as that by writ of error.

The proceedings on the part of the plaintiff in replevin were, (July 20, 1868), ordered to be quashed unless plaintiff within ten days should cause the return to the Writ to be amended, and execute a new bond. The return showed personal service on defendant’s wife, without stating that the defendant could not be found or that the service was at liis dwelling. It was signed by the Deputy Sheriff in his own name and the bond ran to the Deputy.

So far as the signature to the return is concerned, it is valid within the principle of Callender v. Olcott, 1 Mich. R., 344.. And we think the Bond a compliance with the Statute, # C. L. 5,011.. But the return showed no reason why service on the wife should be held valid, and it was therefore insufficient. The application for leave to amend the return was made by plaintiff, but he never procured the amendment.

Pending the interval within which the order to quash was defeasible by such amendment, defendant appeared by attorney by giving notice of retainer. After the time had expired for amendment plaintiff declared. Defendant did not plead, but moved for judgment of non-suit, which was granted.

Thus far there is no error. The appearance entered during the pendency of an order to amend the return can only be regarded as put in subject to such amendment, and when plaintiff made default in that, it would be improper to treat the appearance as a waiver of what was practically a subsequent, and not a prior defect.

Upon quashing the proceedings, an order was entered that the cause “stand for assessment of damages.” No notice, was given of the assessment and no judgment or waiver of return was entered, but the Court at a subsequent term, and without further proceedings, heard evidence and assessed the damages for detention.

The damages were made up of a per diem allowance for the value of the use of the team replevied for the period of detention, and also of compensation for time and money expended in hunting up another team, and for depreciation m the value of the team while detained.

Upon such a discontinuance against plaintiff, defendant was bound to elect whether to claim or waive a return, and the asssessment of damages could only be made when there was on the record some distinct claim in one form or the other to base it upon.—C. L. §5.037-8. The statute also requires notice of the assessment, and it was irregular to proceed without it. Had such a notice been given, plaintiff could have brought up in a regular way the objections to the items allowed for damages which are not now properly before us.

We think -all the proceedings subsequent to the order of dismissal were irregular. The judgment must be reversed with costs, and the cause must be remanded to the Court below to be proceeded in according to law.

The other Justices concurred.


author: Cooley, Ch. J.

text:
    Joseph. Vanderkarr v. James L. Thompson.

      Contracts for the sale of lands: Evidence: Parol resei'vaiion of crops: Contemporaneous convocation. A written contract for the sale of land cannot be affected by a contemporaneous reservation of the crops growing on it.
    What is said by parties, who have signed a contract, having no reference to any new consideration, must be looked upon as contemporaneous with the contract.

      Trespass: License: Evidence. In trespass, evidence of license cannot be shown under the general issue. $

      Eeard July 9.

      Decided July 12.

    Error' to Shiawassee Circuit.
    This was an action of trespass brought in the Circuit Court for the County of Shiawassee, by James L. Thompson v, Joseph Vanderkarr, for entering upon the land in the possession of the plaintiff and cutting and carrying away a quantity of wheat. ' The plaintiff’s possession had been obtained under written contract for the purchase of the land on which the wheat was growing at the time of the purchase. The defendant pleaded the general issue and gave notice of the sale of the land by him to the plaintiff; that the wheat in controversy was growing on the land and had been expressly reserved at the time of the sale; and that in pursuance of the agreement the defendant had entered upon the land and harvested and carried away the wheat. On the trial a witness who had testified that he was present at the making of the contract, was asked whether “any part of the wheat then growing on the land was reserved from the operation of the contract?” and “what was said, if anything, between the parties immediately after signing the contract and before they separated, about the wheat then growing on the land?” The questions were objected to as tending to contradict the the terms of the written contract, and were excluded. The plaintiff had judgment; which the defendant below brings into this court by writ of error.

      Hugh McCurdy, for plaintiff in error.
    The issue made by the pleadings was, that the defendant cut and carried away the plaintiff’s wheat, — the defendant replies, “if I did so, I reserved the wheat growing on the land when I sold it to you and cut and carried away by your consent.”
    The counsel for the plaintiff in the court below, objected to the evidence of the .defendant to show this fact, as incompetent, and the Circuit Judge so ruled, that the evidence offered tended to contradict the written contract given in evidence in the cause, and excluded the evidence. We claim the court erred in this ruling, for the following reasons:
    1. By the common law growing crops are personal property, but pass by conveyance as appurtenant to the land unless severed by reservation, or exception. The nature of such a reservation is a collateral executory contract that our statute does not require to be in writing, and therefore need not be.

      2. Our statute follows the course of the common law, (Sec’s 4,463-4,) and provides that growing grain and unharvested crops may be levied upon by execution and sold thus recognizing the distinction between real and personal property.
    3. It is competent for a party to show by parol, that growing crops were reserved on the sale of land, although the contract of sale or deed contains no exception.
    4. Such reservation need' not be in writing, as it is not an interest in the land, but appertains exclusively to personal property.
    5. The evidence offered was also competent to go to the jury, as it tended to show that when the defendant took the wheat, he not only did so by virtue of a reservation, but that he had a license from the plaintiff to take the wheat — Backenstoss v. Stahler’s Admrs., 33 Penn. (9 Gasey) 251; Harbold v. Custer, 44 Penn. (8 Wright) 392; Merrill v. Blodgett, 34 Vt. (5 Shaw) 480.

    A parol license, is effectual to justify everything which may be done under it, prior to its revocation.—Miller v. Auburn & Syracuse R. R. Co., 6 Hill, 61; Stevens v. Stevens, (11 Met.); 1 Washb. on Real Property, 398, §6; Selden v. Hudson Canal Co., 27 N. Y. 634.

    It will be insisted by the counsel for the defendant in error, that the evidence offered, tended to contradict the the written contract, but, is this so ?
    The contract is silent about the crops growing on the land when it was executed, and the evidence offered was two-fold in its character; first, the wheat was not to be embraced in the contract, — second, that after it was executed, the parties agreed that the wheat was the defendant’s; which would have been establishing a collateral and independent fact, about which the contract was silent.—Kean v.

      McNitt, 6 Minn. 513; Ruggles v. Swanwick, 6 Minn. 526; Facy v. Otis, 11 Mich. 213.

      Gould & Lyon, for defendant in error.
    The sale of the farm, upon which the wheat was growing, carried with it the wheat, which is the subject of this controversy; the agreement was reduced to writing, and contains no reservation of the wheat.
    "We claim that when the written agreement has no ambiguity to be explained, a court of law will not admit parol proof to alter or vary its terms.—Street v. Dow, Harrington Ch. 427; Adair v. Adair, 6 Mich. 204; Jones v. Phelps, 6 Mich. 218; Schwartz v. Wendell, Walker’s Ch. 267; Stange v. Wilson, 17 Mich. 342; 2 Phillips Evidence, Cowen & Hill’s, and Edwards’ notes, pages 557-8, note 464; 13 Ill. 688; 15 Ill. 56; 3 Scammon, 566.

    A reservation, if made, must be a part of the contract of sale, else it would not be a reservation, and therefore, must be merged in the writing.—Martin v. Hamlin, 18 Mich. 354.

    If a sale could be made of wheat growing, by parol, which has been held, (9 Cowen’s Reports 38,) it must have the elements of a bargain and sale, when the sale is upon consideration, and when the minds of the parties meet.
    In this case, it cannot be pretended that there was such a sale, or that the question was asked for that purpose.
    If any cases shall be found, when a reservation was allowed to be established, by parol, it will be found to be when the court has equitable powers, and exercised them, or when there is a violation of the rule held by this court.—2 Phillips Evidence, Cowen & Hill’s, and Edwards’ notes, page 545, note 650.

   Cooley, Ch. J.

Thompson sued Yanderkarr in trespass for entering upon certain lands and taking and carrying away a quantity of wheat. It appears that Yanderkarr sold Thompson the lands by contract of sale in the ordinary form, except that it gave Thompson the right to the immediate possession, use and cultivation of the lands; and the wheat now in question was at that time a growing crop upon them. The wheat is not mentioned in the contract, and Yanderkarr sought to prove on the trial that by verbal agreement at the time the contract was made, the wheat was reserved to him. The Circuit Judge rejected this evidence, and his ruling upon this point presents the first question for our consideration.

We are aware that there are some decisions which sustain a parol reservation of growing crops in a sale and conveyance of lands, and which, therefore, might justify the evidence sought to be introduced in this case; but these decisions, we think, are not only unsound in principle, but they are opposed to the current of authority, and to the well understood rule in this State. The purpose of such,, evidence is to vary the legal effect of the conveyance by establishing a contemporaneous qualifying agreement; and it therefore violates a fundamental rule of evidence, to say nothing of any question that might be raised by it under the Statute of Frauds. We think the Circuit Judge committed no error in this ruling.

We are not to be understood by this opinion as holding or intimating that a parol sale or any parol contract relating to a growing crop, made upon valuable consideration, is invalid. We only hold that a parol contract contemporaneous with the written contract cannot be shown. A contract made at any other time stands on altogether a different footing.

When this evidence was rejected, the counsel for Yanderkarr asked a witness who was present when the contract was made, the following question: “ State what was said, if anything, between the parties, immediately after the signing of the contract and before they separated, about the wheat then growing on the land then contracted by defendant to plaintiff, and that should have been reserved from the operation of the contract.” An objection to this question was also sustained.

If the first ruling was correct, it would seem that this must be correct also, inasmuch as what was said immedidiately after the signing of a contract, and while the parties were still together, and having no reference to any new agreement or consideration must be looked upon as contemporaneous with that formality, and as constituting a part of the same transaction, the result of which was evidenced by the written instrument. It is claimed by counsel, however, that, at least, this conversation after the contract was signed, if it showed Thompson’s permission to Yanderkarr to harvest and remove the wheat, would operate as a parol license, which, until revoked, would protect the licensee against an action of trespass. The answer to this is, that in trespass the defense of license could only be made under a special plea or notice; and no such special defense is made by notice in this case. The defendant, therefore, was not in position to raise this question on the trial.

The judgment must be affirmed with costs.

The other Justices concurred.


author: Cooley Oh. J.

text:
    Jonas Goodell v. Simon Labadie et al.

      Evidence: Exchange of Lands : Charge of the Court as to quality of Proof. A deed offered to prove an exchange of lands, although not signed by the party whose title it was alleged had passed to the party who offered it, when supported by internal and other evidence, tending to show such an exchange, is admissible in evidence.
    And the execution of such a deed having been proved by the grantor and by the officer who took the acknowledgment of it, and the Circuit Judge having been requested to charge that there was no evidence of any conveyance from the alleged grantor to the grantee, refused so to charge; Held correct.

      Heard July 9.

      Decided July 12.

    Error to Wayne Circuit.
    This was an action of ejectment brought by Jonas Good-ell v. Simon Labadie and others, who derive title from Alexis Labadie. Both parties claim under one Charles Beaulo; and the questions arising in tlie case in this court, are as to the effect of evidence introduced by the defendants to prove title from Beaulo to Alexis Labadie. The defendants claiming under an alleged deed, not recorded, and now lost, from Beaulo to Labadie, executed prior to the deed of Beaulo to Goodell, and of which Goodell had knowledge. The execution of the deed was proved by Beaulo the grantor, and by the officer who took the acknowledgment. The defendants also offered the record of a deed commencing, — “This indenture made, concluded and agreed upon this 12th day of May A. D. 1827 between Charles Beaulo and Maria his ' wife of the river Ecorse County of Wayne and Territory of Michigan of the one part, Alexis Labadie and Isabel his wife, of the place aforesaid, of the other part.” The parcels purporting to be conveyed by this deed were a tract of land by Beaulo and wife to Labadie, including the premises in controversy and a tract by' Labadie and wife to Beaulo, each described to be in exchange for the other. This deed was executed and acknowledged by Labadie and wife only. The officer before whom the deed was acknowledged, testified that he took an acknowledgment of deeds between Reaulo and Labadie and their wives, and that it was a deed of exchange. The admission of this record in evidence was excepted to. The Circuit Judge was asked to charge the jury, that there was no evidence of any conveyance from Reaulo to Labadie, and refused; to which an exception was taken. A verdict was found for the defendants, and the judgment rendered thereon, was brought into this court by writ of error.

      Oleaveland Hunt, for plaintiff in error.

      H. M. Oheeroer, for defendant in error.
   Cooley Oh. J.

It appears from this record that G-oodell brought ejectment against the heirs of Alexis Labadie to recover possession of a part of private land claim 496 on the River Ecorse, which he claimed under a deed from Charles Reaulo. The defense was that Reaulo, previous to giving this deed, had conveyed the land in controversy to Alexis Labadie in exchange for a certain other parcel, and that this conveyance, though never recorded, and not now to be found had come to the possession of Goodell before he obtained a deed from Reaulo, and was consequently known to him at that time.

The first error of which the plaintiff complains was, that the Circuit Judge refused to charge the jury that there was no evidence in the case of a conveyance from Reaulo to Alexis Labadie. In this, however, the correctness of the Judge’s action is too plain for argument. There was the positive evidence of Reaulo to its execution, as well as that of a magistrate who testified to having taken the acknowledgment; and there was also confirmatory evidence. The objection of the plaintiff goes rather to the correctness of the conclusion of the jury in giving-credence to this evidence than to the charge of the Court.

The only other alleged error of which we can take notice, is that the Court admitted in evidence a certain deed from Alexis Labadie to Reaulo as tending to prove that Reaulo had conveyed the land in controversy in exchange. On looking into this deed it appears to have been drawn as if to be executed by Labadie and Reaulo both, and to operate as a mutual conveyance. It describes Labadie’s land, and purports to convey it to Reaulo, it then describes the land in controversy, and contains the proper words for a conveyance of it by Reaulo to Labadie. Labadie and his wife alone executed the deed. Now, standing alone, this deed would be some evidence of an intention on the part of Labadie and Reaulo to exchange lands, but it would have, perhaps, but little, if any,' tendency to prove the execution of a similar contemporaneous deed by Reaulo. It might well be argued to the jury that the fair inference was that this deed was prepared for execution by both parties, and that the transaction remained incomplete by a failure on the part of Reaulo to execute it. But in connection with the evidence of the magistrate that two deeds were executed, and with other evidence tending in the same direction, this deed was important and entitled to considerable weight. It was offered m connection with direct evidence of an agreement to exchange lands and it showed that one of the parties to the agreement had performed his part of it by making a conveyance; and manifestly this would have an important influence in support of evidence tending to show that the other party had done likewise.

The judgment must be affirmed with costs.

The other Justices concurred.


author: The Court

text:
    John Bates v. Garrett Stansell.

      Trover: Measure of Damages, A refusal to deliver, on demand, property “ received in store” at bailor’s risk, “to be paid when called for,” is a conversion of the property, the measure of damages for which will be the value of the property on the day of the demand. A subsequent rise in value cannot be allowed to enhance the damages.

      Heard and decided, July 8.

    Case made from Cass Circuit.
    This was an action of trover. The Court found the following facts :
    The plaintiff delivered to the defendant at his mill, near Pokagon, in said county of Cass, several loads of white wheat, number one in quality, amounting m the whole to one hundred and forty-one bushels and thirty-six pounds, in the month of January, 1865, in pursuance of previous arrangement, and took from the defendant a receipt therefor, dated on the 7th of that month. The following is a copy, of the receipt:
    “Received of John Bates- in store, at his own risk, one hundred and forty-one bushels and thirty-six pounds of white wheat, to be paid when called for.
    “Pokagon, January 7, 1865. G. Stansell.”
    The price at Pokagon, when the wheat was delivered, of best quality, was $2.15 per bushel. The plaintiff’s wheat was worth that price. The wheat was left by the plaintiff, as is above stated, in store, and was not sold. The storage was two cents per bushel. On the 17th of March, 1865, the plaintiff went to the mill of the defendant, where he had delivered the wheat, and there demanded of the defendant, in person, the wheat, to which demand the defendant replied he would deliver him wheat of as good quality as that he had received. In a few days the plaintiff again called for the wheat, when the defendant refused to deliver it, but offered to pay him $1.65 per bushel. He made no tender of the money. The price of wheat now in the market, and before suit was brought, was from $2.50 to $3.00. The price before trial had been as high as $3.10. The inferences of law from the above facts are these:
    I. The contract on ..which the wheat was delivered to the defendant, was one of bailment merely, and was not one of sale.
    II. The defendant having converted the wheat to his own use, is liable to pay for the same at the rate of $2.25 per bushel, together with interest thereon from the time of demand, viz., 17th March, 1865. The plaintiff is entitled to judgment for the sum of $360.38. This is made up as follows:
    Wheat, 141 36-60 bushels, at $2.25, .... $318 60
    Interest, two years.,.......... 44 60
    $363 20
    Deduct storage, 2 cents per bushel, .... 2 82
    $360 38
    The price of the storage was not mentioned, nor fixed, until the day when the plaintiff demanded the wheat, when it was agreed on at two cents per bushel. On the day of the demand, wheat was worth one dollar and eighty cents per bushel.”

      Wm. Jennison é F. Muzzy, for plaintiff.

      Blachman, for defendant.
   The Court

held that the conversion of the wheat took place upon the day of the demand, — March 17, 1865 — and made a new judgment for the plaintiff, allowing but $1.80 per bushel for the wheat.


text:
    George Carroll v. William McCleary and George S. Shaw.

      Contract: Conditional delivery: Estoppel. Where a person contracted with, another for the purchase and delivery of wood, to be placed on the premises of a Railway Co. and inspected by their Inspector, but to remain the property of the vendor till paid for, and then contracted with the company to sell and deliver to them a larger amount of similar wood at the same place, and the company’s agents, with his co-operation, appropriated the wood of his vendor which he had not paid for; Held, that this amounted to conversion and that no estoppel arose from the circumstances to prevent suit therefor.

      Heard and decided July 12.

    Error of St. Clair Circuit.
    Tbis was an action of trover for the conversion of a quantity of wood which had been deposited on the line of the Grand Trunk Eailway Company by one David Hickey, in pursuance of a contract between him and MeCleary, one of the defendants; who, as was known to Hickey, had a contract with the Eailway company for the delivery of a much larger quantity of wood. Both contracts required that the wood should be subject to the inspection of the Inspector of the Eailway Company; and by Hickey’s contract with MeCleary, the wood was to remain Hickey’s until paid for. A part of the wood delivered was paid for to Hickey and then Hickey sold the remainder to the plaintiff in this suit. For the conversion of this remaining portion of the wood, this action was brought.
    The defense was that the delivery of the wood on the premises of the Grand Trunk Company was in effect a delivery on McOleary’s contract with the company. The cause was tried before a referee who found for the defendant, Shaw, and against MeCleary. On exceptions this finding was set aside by the Circuit Judge and a judgment rendered in favor of both defendants; which is brought into this Court by writ of error.

      Athinson Brothers, for plaintiff in error.

      Mitchell & Farr and, for defendants in error.
   The Court

held that it sufficiently appeared from the facts found by the referee, that the plaintiff was entitled to recover and ordered a judgment in his favor for the value of the wood.


text:
    George Carroll v. Grand Trunk R. R. Co.

      Repoj't of Referee: Consequences of defective finding. When a report of a referee is so defective that the Court is unable to ascertain the merits of the case the judgment will be reversed and a new trial granted.

      Heard and decided July 12.

    Error to St. Clair Circuit.
    This was an action of trover for a quantity of wood. The case was referred to a referee, and on the coming in of his report judgment was rendered by the Court below in favor of defendant; which judgment is brought into this Court by writ of error.

      Athinson Brothers, for plaintiff in error.

      Wm. T. Mitchell-and F. W. Meddaugh, for defendant in error.
   The Court

held the report to be too defective to authorize the entry of any judgment; and for that reason reversed the judgment and granted a new trial.


author: Thu Court

text:
    Edmund Hall v. John McEwen.

      Contract: Watver of Warranty. Logs were bought by contract at a certain price and warranted to cut a certain proportion of lumber of first quality. The contract provided in detail the tests for determining the quality. The purchaser rendered it impossible to apply the tests agreed upon: Held, that he had waived the right to insist upon the warranty and must pay the full contract price.

      Heard and decided July 12.

    Error to Wayne Circuit.
    This was an action of assumpsit brought by Edmund Hall v. John McEwen upon a contract to deliver two million feet of pine saw logs, which were to be “of such classes or qualities that with judicious and careful sawing into lumber, they should yield at least twenty per cent ‘ upper ’ qualities.” The contract provided a mode of determining the quality of the logs, m case the defendant was not satisfied, upon delivery, that they would yield twenty per cent-above common; and it also provided another mode by which the plaintiff, at his option, might compensate the defendant, if the logs should fail to be of the quality required.
    The cause was tried before a referee, who found, as facts, that the defendant did not notify the plaintiff of his dissatisfaction with the quality of the logs delivered, so that the provisions of the contract for the determination of the quality could be carried out; nor did the defendant afford the plaintiff an opportunity, as required by the contract, to exercise his option as to the mode of compensating the plaintiff for any defect in quality that might be found to exist. And the referee found as conclusions of law, that the “defendant having failed to give the plaintiff the benefit of his election to take away a sufficient amount of common and culls to leave twenty per cent of upper qualities in the remainder, cannot -now claim that the lumber fell short of the warranty;” and “that the plaintiff was entitled to recover the sum of $2,253,01 which includes interest to the date of the referee’s report.
    On exceptions, the Circuit Judge set aside the conclusions of the referee and found a judgment for the plaintiff of $1,857,03 ; which judgment the plaintiff below brings into this Court by writ of error.

      Geo. A. Wilcox, for plaintiff in error.

      D. O. Holbrook, for defendant in error.
   Thu Court

held, that the contract having provided in detail the tests by which the parties should ascertain whether the logs would cut the proportion of the designated quality, which the contract demanded; and the defendant having rendered it impossible to apply these tests, he had waived his right to insist upon the warranty and must pay the contract price for the logs; and the plaintiff therefore had judgment for the full amount as found by the referee.


text:
    William Shoemaker and Louisa Shoemaker v. Davidson Gardner et al.

      Homestead : Parties to, and averments in, a MU to protect a Homestead. Tlie wife is a proper party to a bill filed to protect a homestead against a mortgage not signed by her. '
    A bill to protect a homestead must show all the facts necessary to the description of a homestead as defined by law.

      Heard and decided July 12.

    Appeal in Chancery from Berrien Circuit.
    In November, 1861, William Shoemaker, executed a mortgage on premises then occupied by him and his family, consisting of his wife and children, as a homestead. His wife did not join in the mortgage. This mortgage was foreclosed and the premises sold„under the decree to Davidson. Gardner, by whom proceedings were commenced to obtain possession of the premises. The bill in this case was filed by the said William Shoemaker and Louisa Shoemaker his wife, for a perpetual injunction against -the proceedings to obtain possession of the premises under the foreclosure sale. The bill stated that the complainants, at the time of the execution of the mortgage, were husband and wife, and then, and ever since had, occupied the mortgaged premises as a homestead ; that the mortgage was not given to secure the payment of the purchase money of the said premises; and that it was not signed by the complainant, Louisa Shoemaker. The bill did not aver that the value of the mortgaged premises, claimed as a homestead, did not exceed the sum of $1,500.
    The defendants demurred to the bill; and on the hearing the Circuit Judge overruled the demurrer and granted the prayer of the bill for a perpetual injunction ; from which decree the defendant appealed to this Court.

      D. Blacl&man, for defendants.
   The Court

held that the wife was a proper party to a bill filed by a husband to protect the homestead; and that if the case made by the bill had shown the mortgaged premises to be a homestead as defined by law, the decree of the Court below would have been affirmed. The case, however, was defectively stated in this: — that the bill did not aver that the value of the premises, claimed as a homestead, did not exceed the sum of $1,500. The Court therefore reversed the decree; but as the proceedings in other respects seemed unexceptionable, the case was remanded, with leave to the complainants to amend their bill.


author: Graves, J.

text:
    Harriet Travers v. Gage Inslee.

      Replevin fm'property seized to enforce the collection of a tax. The Statute which provides that no replevin shall lie for any property taken hy virtue of a warrant for the collection of a tax, must be construed to apply only to cases where the property seized is that of the person, or of one in privity with the person, against whom the tax was assessed.

      Heard and decided July 12.

    Error to St. Clair Circuit.
    Harriet Travers brought her action of replevin for a horse seized by Gage Inslee as Marshal of the city of Port Huron, to enforce the collection of a tax assessed against John T. Travers. On the trial the defendant was allowed, against the objections of the plaintiff, to justify the taking of the property under the tax proceedings; and the rulings of the Circuit Judge admitting these proceedings in evidence were excepted to as erroneous. A verdict was found for the defendant, and the judgment entered thereon is brought into this court by writ of error.

      Atkinson Brothers, for plaintiff in error.
    The court erred in admitting proof that the defendant took the property in question to satisfy a tax against John T. Travers. The defendant relies upon section 5,008, O. L. “No replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment or fine, in pursuance of any statute of this State.” The warrant in this case was against John T. Travers. Only his property could be taken by virtue of it.
    The statute amounts to no more than the common law principle, that property in the hands of the law cannot be. replevied.—See O’Reiley v. Good, 42 Barb., 521; Bacon’s Abridgement Replevin C. But it was always held that property was in the hands of the law only as to the person against whom the process ran.—Clark v. Skinner, 20 John. 466. An officer can only be protected by process when he acts in obedience to it. In this case the defendant had no warrant against the plaintiff, and when he took her property was acting entirely without process.

      W. T. Mitchell, for defendant in error.
    The main point in this case, is, whether the plaintiff, admitting her to be the bona-fide owner of the horse, could maintain this action of replevin. We submit that it makes no difference against whom the tax was assessed, nor whose property was taken. The owner cannot ' maintain this action. The right and title to property taken for taxes, cannot be controverted by action of replevin. The owner is compelled, if his property is wrongfully taken, to resort to other remedies.
    ,The plaintiff, whether the owner or not, could not truthfully make the necessary affidavit to entitle the writ to execution. But having made such an affidavit, whenever it appeared that the property was taken by virtue of a warrant, for the collection of a tax, assessment or fine, etc., the Court was bound to give judgment for the defendant. Comp. Laws, § 5,008.

    No question in this case is made as to the regularity of the tax, and warrant for its collection.
    There is a broad distinction between the section of the statute quoted, and the one permitting replevin for property exempt from execution. The form of the affidavit clearly indicates the distinction. § 5,011.

    In the case of execution or attachment, it must be against the plaintiff. In the case of tax, assessment or fine, against any. one, levied by virtue of any law of this State, the tax, only, must be levied by virtue of law. The seizure is not required to be by virtue of law, but under the warrant simply, and if the officer, by chance, makes a mistake in the ownership of the property seized, the owner, cannot maintain replevin.
    These statutes are all mandatory, and must be strictly pursued, even though the property replevied cannot by possibility be seized for a tax, or taken on an execution or attachment. Phoenix v. Clark, 2 Mich. 327.

    Replevin will not lie for property taken, by virtue of a warrant, lor the collection of any tax assessment, or fine, in pursuance of any statute of this State.—People ex rel. Groat et al. v. Albany C. P., 7 Wendell, 485. The same doctrine is held in Pennsylvania:—Potts v. Oldwine, 7 Watts, 173. And substantially the same in New Hampshire.—Brocket v. Whidden, 3 N. H. 17.

   Graves, J.

The only question in this case is, whether a party whose personal property has been seized on a tax warrant for the taxes of a third person, can maintain replevin. *

The plaintiff in error maintains that the statute regulating the jurisdiction and mode of proceeding in this action, denies the remedy in every instance where the taking complained of is, in form, a seizure for taxes, and that the nonexistence of any tax against the party claiming the property, furnishes no exception to the rule. *

The provision which is supposed sufficient to produce this result is §5,008 Comp. L., which is as follows: “ No replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment or fine in pursuance of any statute of this State.”

This language is, indeed, very general, but, we think, that a just construction of the section will lead to a different result from that contended for by the plaintiff in error.

The passage in question would seem to have been dictated by a sense of the impolicy and inconvenience of allowing the party, subjected to a fine or charged with a tax, to arrest the proceedings for collection made necessary by his default, and to seize, as his own, under legal process the very property already taken to ensure satisfaction. And we think that it could not have been the purpose of the Legislature to leave it in the power of a collecting officer to seize and hold the property of one, for a tax or fine against another, without any right in the party thus trespassed upon, to regain the identical property so- taken.

The remedy by replevin is often the only one of any real value to the party, in consequence of the irresponsibility of the defendant, or the peculiar characteristics of the property in controversy, and we can perceive no satisfactory reason for a denial of this remedy to á person charged with no default, and owing no duty to the public or to individuals.

The position of the defendant in error would pave the. way to many serious hardships and abuses. It would favor the seizure of the property of parties innocent of any fault, to satisfy claims against dishonest and delinquent debtors to the public ; and would suggest to collectors the feasibility of making, in an emergency, the whole tax in a given community from the property of a single individual or corporation.

As the statute in question may have full beneficial effect if so construed as only to exclude the remedy from those charged with the tax or fine, or their privies, and since no satisfactory reason is discovered for the broader application insisted on by defendant in error; and because such an application would tend to produce very mischievous consequences, we think the Legislature must have intended to leave the remedy open to parties in the situation of the plaintiff in error.

The Supreme Court in New York seem to have reached the same result in a recent case under a statute nearly identical with ours, and we think there can be no doubt of its correctness.—Stockwell v. Vietch, 15 Abbott’s Pr. 412.

The judgment of the Court below is reversed with costs, and a new trial ordered. ,

The other Justices concurred.