Vining v. Millar

80 N.W. 1133, 121 Mich. 235, 1899 Mich. LEXIS 556

• Court: Michigan Supreme Court
• Decided: September 19, 1899
• Status: Published

Opinion

Grant, C. J.

This case is before us for the third time. For statement of facts and the issue involved, see 109 Mich. 205, and 116 Mich. 144. Upon this trial the court directed a verdict for the defendants for the amount due Millar on his mortgage. It is now claimed that there was evidence to show that plaintiffs, through Vining, had possession all the time under their mortgage, and that, when Vining was taken sick, Stilson took his place, and held possession under the same authority. The question of possession was the vital point in issue on the second trial. The case was reversed on the ground that there was no evidence that plaintiffs were in possession as mortgágees. Plaintiffs insisted on the second trial that they were in possession as mortgagees. In their brief on the second appeal to this court they say: “Plaintiffs had a lien, and defendants had a lien; but plaintiffs perfected their lien by possession, either immediately, or, at least, before defendants did.” The same witnesses testified upon the third trial as upon the second. Ferguson’s testimony differs from that given before only in that he testified upon the last trial: “Vining was to go and take possession under our mortgage, as well as for the partnership, and he was to manage the partnership; but that partnership was additional security as regards our mortgagé.” We do not think there is such a difference in the evidence as to justify a reversal and a new trial. How could Vining be in possession as managing partner, and still be in possession as the mortgagee in an unrecorded mortgage?

The two are inconsistent, when the rights of subsequent mortgagees are concerned.

Judgment affirmed.

Hooker, Moore, and Long, JJ., concurred. Montgomery, J., did not sit.