Citation Numbers: 67 Mich. 125
Judges: Campbell, Other
Filed Date: 10/6/1887
Status: Precedential
Modified Date: 9/8/2022
Plaintiff sued in replevin for goods and chattels taken from his store by defendant under an execution upon a decree against Aaron Wessels. The decree is averred to have been made in a suit by one Miller against Aaron Wessels, jointly with the administrator of Samuel B. Wessels, deceased, and was rendered July 19,1884. The execution was issued and levied in August, 1885, and was for $2,300. It does not appear from the record for what purpose, or under what claim, the bill was filed. It appears by
The principal objection to the charge is that it should not have submitted to the jury the questions on which recovery was allowed in defendant’s favor. The only ground on which defendant could lawfully recover was that the goods levied on belonged to Aaron Wessels; and it is claimed that no testimony legally establishing that fact appears in the case.
The property levied on included a stock of goods and four cattle. We do not discover in the testimony anything whatever identifying these cattle with Aaron Wessels. The whole testimony seems to have been aimed at the store business, so far as showing any fraud is concerned, and, although there is some testimony about cattle, there is none relating to these cattle, that we have found. The court makes no allusion in his charge to any subject of inquiry except the stock of goods seized.
The great body of the testimony, which is greatly wanting in definiteness, and is claimed to show fraud, relates to fraudulent dealings set up concerning other property of Aaron Wessels not in controversy here. None of the goods levied on were ever shown or claimed to have been transferred by Aaron Wessels for any unlawful purpose, and the levy cannot be maintained on any such ground. This makes the case differ materially from ordinary attempts to set aside transactions as fraudulent against creditors, and raises some difficulties accordingly. To understand the bearing of the questions presented, it is necessary to attend to the way in which they are brought in.
Aaron Wessels appears to have made an assignment about
In order to make out a case, defendant introduced testimony, the ostensible purpose of which was to show that Wessels had made way with a considerable amount of property, and to show a lack of money in plaintiff. So far as Wessels is concerned, there is testimony having a legal tendency to show a removal of some of his property, while he
The most important question, perhaps, is whether, if the-testimony tended to show that the money to purchase the stock came from Wessels, the stock, as it stood when the levy was made, was subject to that'levy.
Assuming, which is not very clear, that there was testimony from which it could be inferred that Wessel’s means-furnished the price, all of that testimony referred to property owned before Wessels made his assignment, and subject to the assignment. By our statutes then in force, the whole-estate vested in the assignee, and was not subject to the seizure-of any particular creditor, and was not subject, therefore, either to levy or to any other legal appropriation. The assignee, and not Wessels, owned it, and had a right to follow it.
But, if this were not so, the case stands no better. The-fact that one man furnishes another with means to start in business, whether for honest or for dishonest purposes, does not give the former any legal title in the goods. If funds-
We think the objection is well taken that the court should not have charged that there was any case against defendant to be passed on by the jury.
It is not necessary to consider the errors assigned on testimony. The testimony, whether on knowle ige or otherwise, was to a considerable extent let in, apparently, on the theory that this property had been disposed of by Wessels in fraud of his creditors, and was therefore subject to levy; when in fact, as the court charged, the sale was valid, and the proceeds went to pay creditors. The testimony especially complained of was open to some other criticism. As we did not have the benefit of oral argument by plaintiff’s counsel, and their brief is rather general, we do not think it needful to go further.
The judgment must be reversed, and a new trial granted.