McLaughlin v. Smith ( 1881 )

Marston, C. J.

March 1st, 1876, John Krebs mortgaged certain goods and chattels to Chester B. Smith, who, April 8th following, assigned the debt and mortgage to Henderson, Smith & Co., defendants in error. March 29, 1876, Krebs sold his interest in the property, subject to the mortgage, to Henry Martins. McLaughlin, as deputy sheriff, by virtue of an execution against Martins, levied (upon the property May 15th, 1877. The mortgage to Smith was duly filed, and on the day of the levy, Smith, one of the defendants, made and filed an affidavit showing the amount due on the mortgage. There was evidence introduced tending to show that Martins abandoned or turned the property over to defendants. The time this was done does not clearly appear, and is, in the present aspect of the case, perhaps immaterial. The court excluded the defense because notice thereof was not given with the plea of the general issue. Fry v. Soper 39 Mich. 727.

I think there is no injustice in requiring notice of such a defense to be given. It affords to the plaintiff an opportunity to make an examination before trial of the validity of the judgment and proceedings relied upon, and distinctions drawn between cases where such notice must be given and where it need not be, only tend to confusion.

My brethren are of a different opinion, however, and think this case differs from Fry v. Soper. In that case the assignment by the attachment debtors to Soper was attacked as fraudulent, while in the present case it is only the interest of the mortgagor that is sought to be reached, and the rights of defendants under the mortgage to Smith assigned to them, are not questioned, and these defendants cannot be prejudiced by the levy and are not entitled to such notice.

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

The other Justices concurred.