Wakeman v. Barrows

Michigan Supreme Court

Wakeman v. Barrows

2 N.W. 50, 41 Mich. 363, 1879 Mich. LEXIS 856

CourtMichigan Supreme Court

DecidedJuly 2, 1879

StatusPublished

Cited by9 cases

This text of 2 N.W. 50 (Wakeman v. Barrows) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wakeman v. Barrows, 2 N.W. 50, 41 Mich. 363, 1879 Mich. LEXIS 856 (Mich. 1879).

Pincite

Opinion

Marston, JT.

Barrows, claiming title as assignee of Wright & Wakeman, for the benefit of their creditors, brought replevin for certain goods held by Wakeman under a chattel mortgage given by the assignors, and turned out by them to the representative of the mortgagee the day previous to the assignment. The assignment described the mortgaged goods and added that they were “under conditional chattel mortgage to A. Wakeman, deceased, and now in their possession.”

It is wholly unnecessary to discuss the various questions raised in reference to the validity and filing of this mortgage. There is one objection fatal to the plaintiff’s [365]*365right to maintain the action. He was the voluntary assignee of the mortgagors, and took the property subject to the mortgage. His title to the goods and right to maintain this action could not be superior to that of his assignors. He did not represent their creditors in such a manner as to entitle him to attack the mortgage. Creditors could question the validity of the mortgage only in proceedings brought to enforce their claims.

An assignee under the bankrupt law or an involuntary assignee under a State statute would occupy a different position, and the cases cited by counsel for defendant in error were all of this character. This plaintiff does not represent the creditors, and if he did he is in no position to question the validity of the mortgage. Voorhies v. Frisbie, 25 Mich., 476; Millar v. Babcock, 29 Mich., 526.

The judgment must be reversed with costs and a new trial ordered.

The other Justices concurred.

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

Marston, JT.

Barrows, claiming title as assignee of Wright & Wakeman, for the benefit of their creditors, brought replevin for certain goods held by Wakeman under a chattel mortgage given by the assignors, and turned out by them to the representative of the mortgagee the day previous to the assignment. The assignment described the mortgaged goods and added that they were “under conditional chattel mortgage to A. Wakeman, deceased, and now in their possession.”

It is wholly unnecessary to discuss the various questions raised in reference to the validity and filing of this mortgage. There is one objection fatal to the plaintiff’s [365]*365right to maintain the action. He was the voluntary assignee of the mortgagors, and took the property subject to the mortgage. His title to the goods and right to maintain this action could not be superior to that of his assignors. He did not represent their creditors in such a manner as to entitle him to attack the mortgage. Creditors could question the validity of the mortgage only in proceedings brought to enforce their claims.

An assignee under the bankrupt law or an involuntary assignee under a State statute would occupy a different position, and the cases cited by counsel for defendant in error were all of this character. This plaintiff does not represent the creditors, and if he did he is in no position to question the validity of the mortgage. Voorhies v. Frisbie, 25 Mich., 476; Millar v. Babcock, 29 Mich., 526.

The judgment must be reversed with costs and a new trial ordered.

The other Justices concurred.

Cite This Page — Counsel Stack

Bluebook (online)

2 N.W. 50, 41 Mich. 363, 1879 Mich. LEXIS 856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wakeman-v-barrows-mich-1879.

Opinion

Related

Cite This Page — Counsel Stack