Wallen v. Rossman

Cooley, J. The plaintiff is mortgagee of chattels, and by reason, as he says, of erroneous information, put his mortgage on record in the wrong office. Eor the failure to place it in the proper office, the mortgage was void as against creditors: Comp. L., § 4706; Fearey v. Cummings, 41 Mich. 376; Cooper v. Brock, 41 Mich. 488. The defendant is sheriff of the county of Montcalm, and as such levied certain attachments upon the mortgaged property on behalf of the creditors of the mortgagor. The mortgagee brought replevin, and in the court below judgment passed against him. We have looked through the record in vain for any circumstance which can distinguish this case from those above cited. There was evidence that the mortgagee had taken possession of the property before one of the attachments was levied; but this was not a material fact: Fearey v. Cummings, supra. Proof was also offered that the creditors had [335] negotiated for the mortgage, and thus recognized its validity. But an offer to buy up a claim does not estop one from disputing its validity. Parties in danger of falling into litigation often do this, with great propriety and prudence. The plaintiff also offered to show that the demand in one of the attachment cases, which had passed into judgment, was paid before judgment. There was no offer to show fraud or collusion bet-ween the attachment creditor and the debtor; and without this what was proposed would be merely an. attempt to re-try the question involved in the attachment suit. He also sought to show that one of the attachments was levied subject to the mortgage ; but the officer's endorsement of the levy showed the contrary, and it could not be contradicted in this way. The cases of Nall v. Granger, 8 Mich. 450, and Winfield v. Adams, 34 Mich. 437, which are referred to, are different. What was in issue in those cases was the act of the officer publicly performed; but when an officer levies on property, the question whether he levies as upon a complete title or only on some imperfect or encumbered interest, is a matter resting in intent, and respecting which he is under no necessity of making any public statement whatever, or any statement beyond what he enters on his writ. Moreover, if he should first make the levy subject to the mortgage, he would have a right to change it afterwards, and the endorsement on his writ is the evidence of his final action. The judgment is correct, and must be affirmed, with costs. The other Justices concurred.