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Opinion of the Court.

a continuous possession of the whole, notwithstanding any temporary and occasional intrusion by others upon a different part of the tract, which did not interfere with the work.

The entry of the plaintiff with the attorney of his co-heirs in 1874, and the delivery of the deed to him with a handful of earth, if weight and consideration are to be given to that proceeding under the circumstances in which it was made, would only reduce the period of undisturbed possession to twentyeight years. The cutting of wood on a different portion of the land by the Fullers for family use, or the manufacture of baskets, at occasional intervals during a portion of this period, though competent for the consideration of the jury, was not necessarily an interruption to the peaceable occupation of the land, so far as quarrying of the ledge and the removal of the stone were concerned, to which uses the defendants and their ancestors in title subjected it, and which appear to have constituted its principal value. Nor did it necessarily change the legal effect of the possession for quarrying the ledge with the attendant claim to the whole tract.

In Webb v. Richarılson, the Supreme Court of Vermont, in speaking of interruptions in the actual occupancy of real property as affecting the claim of continuous possession, said: “ To constitute a continuous possession it is not necessary that the occupant should be actually upon the premises continually. The mere fact that time intervenes between successive acts of occupancy does not necessarily destroy the continuity of the possession. The kind and frequency of the acts of occupancy necessary to constitute a continuous possession depend somewhat on the condition of the property, and the uses to which it is adapted in reference to the circumstances and situation of the possessor, and partly on his intention. If, in the intermediate time between the different acts of occupancy, there is no existing intention to continue the possession, or to return to the enjoyment of the premises, the possession, if it has not ripened into a title, terminates, and cannot afterwards be connected with a subsequent occupation so as to be made available toward gaining title; while such continual intention might, and generally would, preserve the possession unbro

Opinion of the Court.

ken.” 42 Vt. 465, 473. That was an action of trespass for cutting timber on the land of the plaintiff, who was in possession at the time, and offered testimony to prove that his possession was earlier than the defendant's, and also that he had acquired the land by fifteen years' adverse possession. The defendant did not show a chain of title back to the original proprietor of the land, but showed that his grantors entered into possession in 1835, and cut timber and claimed to own the land, and it was held that the question whether this entry interrupted the plaintiff's possession should have been submitted to the jury under proper instructions, in connection with the plaintiff's evidence of continuous possession under those through whom he claimed, and that it was error to refuse to submit it.

Our conclusion is, that the claim to the land in controversy by the defendants and their ancestors in title for over a century, with the payment of taxes thereon, and acts of ownership suited to the condition of the property, and its actual use for thirty-six or twenty-eight years, it matters not which, would justify a presumption of a deed to the original ancestor, Jeremiah Richardson, to quiet the possession of the defendants claiming under him, and the jury should have been permitted to presune such a deed without finding from the testimony that there was in point of fact a deed which was lost. If the execution of a deed was established, nothing further would be required than proof of its contents; there would be no occasion for the exercise of any presumption on the subject. It is only where there is uncertainty on this point that the presumption is indulged to quiet the possession. The judgment of the court below must be reversed, and the

cause remanded for a new trial.

Statement of Facts.




Argued November 16, 17, 1886. – Decided March 7, 1887.

In Michigan, when a chattel mortgage is attacked as fraudulent against

subsequent creditors or mortgagees in good faith, by reason of the mortgagor being permitted to remain in possession and to prosecute his business in the ordinary way, it is the province of the jury to determine whether such fraud is proved; but when the evidence is overwhelming, and leaves no room for doubt as to what the fact is, the court may give

the jury a peremptory instruction covering the issue. In Michigan a creditor at large cannot attack a chattel mortgage made by

the debtor, except through some judicial process, whereby he acquires • an interest in the property; as by levy of attachment or execution. In Michigan the mortgagee in a chattel mortgage, given to secure a preëx

isting debt, is not a “mortgagee in good faith,” within the intent of the statute of that state which provides that every such mortgage “which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers or mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed” in the place or places in

dicated in the act. The doctrine that the bona fide holder for value of negotiable paper, trans

ferred as security for an antecedent debt merely, and without other circumstances, is unaffected by equities or defences between prior parties of which he had no notice, does not apply to instruments conveying real or personal property as security, in consideration only of preëxisting indebtedness.

Thus was an action of replevin involving conflicting claims under certain chattel mortgages executed by Freedman Bros. & Co., formerly merchants in the city of Detroit. The firm was composed of Ilerman Freedman, who managed its business in Detroit; Benjamin Freedman, who resided in New York, and had entire charge of the buying and of the firm's financial affairs in that city; and Rosa Freedman. At the beginning of the action the mortgaged property was in the custody of Leopold Freud as agent of the People's Savings Bank, plaintiff in


Statement of Facts.

Bates, Reed & Cooley, the defendants in error, who were the plaintiffs below, claimed priority under a mortgage given by Freedman Bros. & Co., February 7, 1881, to secure both the past indebtedness of the latter amounting to forty-five thousand dollars and upwards, for goods, wares, and merchandise sold, and money loaned, to them, and any future liabilities which might be incurred by the mortgagors for other goods purchased, or other moneys borrowed, from the mortgagees ; the mortgage, covering not only the goods, wares, merchandise, and other personal property then in the mortgagors' stores in Detroit, but also their notes, book accounts, and securities, and all future additions to, or substitutions for, such goods and merchandise. No part of said indebtedness was created at the time of the execution of the mortgage.

The People's Savings Bank claimed under a mortgage made by Freedman Bros. & Co., on the 11th of February, 1881, to secure certain demand notes, aggregating forty-nine thousand dollars, which were executed by that firm on the 7th day of February, 1881, and also “all other paper indorsed” by it and held by the bank; that mortgage covering all the goods and merchandise then in the mortgagors' stores and all thereafter put into them. This last mortgage provided that Leopold Freud, the bank's agent, should take immediate possession and sell the goods in the ordinary course of business, applying the proceeds to said indebtedness until the same was paid. The said demand notes represented past indebtedness; for they were given in place of other paper of the mortgagors then outstanding, and which had not then matured. Each demand note was accompanied by a cognovit or “confession of judgment," under which, however, no action was taken. The mortgage to the bank was the first one filed in the proper office in Detroit, though it was not lodged until after the bank had notice, through its agent, that Bates, Reed & Cooley claimed to be in possession of or to have rights in the mortgaged property. Whether the bank, before the mortgage to it was given, had actual notice of the prior mortgage to Bates, Reed & Cooley does not clearly appear.

By the statutes of Michigan relating to chattel mortgages

Argument for Plaintiff in Error.

it was provided that “every mortgage, or conveyance intended to operate as a mortgage, of goods and chattels, which shall hereafter be made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers or mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed in the office of the township clerk of the township, or city clerk of the city, or city recorder of cities having no officer known as city clerk, where the mortgagor resides, except when the mortgagor is a non-resident of the state, when the mortgage, or a true copy thereof, shall be filed in the office of the township clerk of the township, or city clerk of the city, or city recorder of cities having no officer known as city clerk, where the property is.” 2 Ilowell's Annotated Statutes, pp. 1607, 1610, S 6193.

Mr. John Atkinson (Mr. James T. Keena, Mr. Ashley Pond, and Mr. George V. N. Lothrop were with him on the brief) for plaintiffs in error cited: Robinson v. Elliott, 22 Wall. 513; Fearey v. Cummings, 41 Mich. 376; Putnam v. Reynolds, 44 Mich. 113; Talcott v. Crippen, 52 Mich. 633; Oliver v. Eaton, 7 Mich. 108; Gay v. Bidwell, 7 Mich. 519; Lucking v. Wesson, 25 Mich. 443; Gardner v. Matteson, 38 Mich. 200; Kohl v. Lynn, 3+ Mich. 360; Gill v. Griffith, 2 Maryland Ch. 270; Farrington v. Sexton, 43 Mich. 454; Lee v. Brown, 7 Geo. 275; Frost v. Goddard, 25 Maine, 414; Shaw v. Levy, 17 S. & R. 99; Winslow v. Leonard, 24 Penn. St. 14;1 Lanfear v. Sumner, 17 Mass. 110 [S. C. 9 Am. Dec. 119]; Ricker v. Cross, 5 N. H. 570 [S. C. 22 Am. Dec. 480]; Lamb v. Durant, 12 Mass. 54 [S. C. 7 Am. Dec. 31]; Frank V. Miner, 50 Ill. 444; Constant v. Matteson, 22 Ill. 546; Atkyns v. Byrnes, 71 Ill. 326; Julson v. Corcoran, 17 How. 612; Smith v. Algar, 1 B. & Ad. 603; Longridge v. Dorville, 5 B. & Ald. 117; Burchard v. Frazer, 23 Mich. 221; Jones v. Graham, 77 N. Y. 628; Frisbey v. Thayer, 25

1 S. C. 72 Am. Dec. 354.

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