Kellogg v. Secord , 1879 Mich. LEXIS 759 ( 1879 )

Maeston, J.

What effect the failure to file the chattel mortgage might have had in this case we need not determine. The officer advertised it for sale subject to the mortgage, and it was so sold. This was a recognition of the fact that the mortgage was a valid subsisting lien on the property, and a notice to purchasers that they would stand in no better position than the mortgagor. Parties purchasing under such circumstances could not well come into court and deny the validity of such a mortgage because not filed in the township clerk’s office.

The court properly rejected the evidence offered to prove what Hutchinson had testified to in the justice’s court ease. The witness was but temporarily absent from the State, and it did not appear that he had been subpoenaed, or that any effort had been made to procure his testimony or personal attendance at the trial. The rule laid down in Howard v. Patrick, 38 Mich., 795, should not be extended to such a case.

The judgment must be affirmed with costs.

The other Justices concurred.