Marshall v. Trustees of the First Presbyterian Church

Circuit Court of the 31st Circuit of Michigan

Marshall v. Trustees of the First Presbyterian Church

1 Mich. N.P. 248

CourtCircuit Court of the 31st Circuit of Michigan

DecidedJuly 15, 1870

StatusPublished

This text of 1 Mich. N.P. 248 (Marshall v. Trustees of the First Presbyterian Church) is published on Counsel Stack Legal Research, covering Circuit Court of the 31st Circuit of Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marshall v. Trustees of the First Presbyterian Church, 1 Mich. N.P. 248 (Mich. Super. Ct. 1870).

Pincite

Opinion

Mitchell, J.

The facts involved in this case are all substantially set forth in the statement of the case of Fitzgerald against the same defendants, and differs from that in the fact that in this ease Marshall, who assigned to Fitzgerald seeks to (enforce a lien made by the same contract over and above the amount claimed to have been assigned to Fitzgerald, and this case is decided without any further recapitulation of the facts.

The petition is filed against Robert Wilson and others, trustees, &c., and their successors in office, states the assignment to Fitzgerald of $1,199, and that the balance, about $2,900, belongs to petitioner, and that he has a. lien therefor upon the church proprety.

[249]*249I am compelled to hold that the contract, and resulting lien, is an entirety and cannot be divided into separate claims or liens, and that separate proceedings by different or the same parties under the- same contract cannot be maintained unless it may be that the statute authorizes the contractor and sub-conractor to set up and file petitions for separate lieDs. It is clear such seperati<>n does not extend to the contractor and his assignees.

That the contract is with Robert Wilson and others, as indiv iduals, and not as trustees, the undertaking promise and signature being by them individually, and not as trustees, and not ndertaking to bind the church, the church is in no way bound by the contract of- those individuals. The fact that the words “ trustees ” &e., follow their names in the part of the contract, stating between whom it was made (but being no part of the promise, and they promising and assigning without that addition) can make no difference, and the words “ trustees, &c.,” must be treated as descriptio personae only, and not stating that they contracted as trustees or in what capacity.

That the assignment to Fitzgerald was an assignment of the .whole contract, and not of the part then due only, but of all to become due, and it so far divested Marshall of all interest therein as to put it out of his power to sue for any amount due on it or to enforce any lien he might otherwise have had under it until after reassignment.

That the contract being with Robert Wilson and others individually, and they not individually owning the lands upon which the lien is sought to be enforced, this petitioner has no lien upon the church property.

It follows that the petition must be dismissed with costs, but without prejudice to any other remedy at law or in equity

Free access — add to your briefcase to read the full text and ask questions with AI

Mitchell, J.

The facts involved in this case are all substantially set forth in the statement of the case of Fitzgerald against the same defendants, and differs from that in the fact that in this ease Marshall, who assigned to Fitzgerald seeks to (enforce a lien made by the same contract over and above the amount claimed to have been assigned to Fitzgerald, and this case is decided without any further recapitulation of the facts.

The petition is filed against Robert Wilson and others, trustees, &c., and their successors in office, states the assignment to Fitzgerald of $1,199, and that the balance, about $2,900, belongs to petitioner, and that he has a. lien therefor upon the church proprety.

[249]*249I am compelled to hold that the contract, and resulting lien, is an entirety and cannot be divided into separate claims or liens, and that separate proceedings by different or the same parties under the- same contract cannot be maintained unless it may be that the statute authorizes the contractor and sub-conractor to set up and file petitions for separate lieDs. It is clear such seperati<>n does not extend to the contractor and his assignees.

That the contract is with Robert Wilson and others, as indiv iduals, and not as trustees, the undertaking promise and signature being by them individually, and not as trustees, and not ndertaking to bind the church, the church is in no way bound by the contract of- those individuals. The fact that the words “ trustees ” &e., follow their names in the part of the contract, stating between whom it was made (but being no part of the promise, and they promising and assigning without that addition) can make no difference, and the words “ trustees, &c.,” must be treated as descriptio personae only, and not stating that they contracted as trustees or in what capacity.

That the assignment to Fitzgerald was an assignment of the .whole contract, and not of the part then due only, but of all to become due, and it so far divested Marshall of all interest therein as to put it out of his power to sue for any amount due on it or to enforce any lien he might otherwise have had under it until after reassignment.

That the contract being with Robert Wilson and others individually, and they not individually owning the lands upon which the lien is sought to be enforced, this petitioner has no lien upon the church property.

It follows that the petition must be dismissed with costs, but without prejudice to any other remedy at law or in equity

Cite This Page — Counsel Stack

Bluebook (online)

1 Mich. N.P. 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-trustees-of-the-first-presbyterian-church-micirct31-1870.