Wakeman v. Barrows

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

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 right 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.