CRIPPEN v. MORRISON.

us which hold that this statute only takes away a remedy, but leaves the right of possession unimpaired in the mortgagee. With great respect for the tribunals so deciding, we cannot accept this interpretation. It destroys all the value of the provision, if it allows a right of entry against the will of the mortgagor. In. Mundy v. Munroe, 1 Mich. R., 68, it was held the statute was void as to former mortgagees; a ruling which would have been out of place, had the law not reached something more than a mere remedy. This decision has been affirmed on numerous occasions since. In Baker v. Pierson, 5 Mich. R., 456, it was held by this Court that a prior mortgagee, who, during a foreclosure suit of a subsequent mortgage, obtained possession from the mortgagor, could not retain possession after a sale on that foreclosure. To this opinion we

adhere, as in accordance with the statute.

The mortgagor, therefore, until actual foreclosure, is in possession by right, and not by sufferance, and may make such arrangements for the use of the property as any other person could during his term. The machinery never became any part of the realty: Crippen was not misled by appearances, and had no right to dispose of it.

It is also objected that defendants in error are barred of their claims because they were parties to the foreclosure suit. But as they had mortgages on the real estate, they were proper defendants on that ground. We cannot presume the bill in that case was filed for any other purpose than a simple foreclosure. The ordinary allegations of a foreclosure suit would not authorize a decree declaring these chattels to belong to the realty. The decree, under ordinary circumstances, would simply allow the land to be sold, leaving all questions concerning its appurtenances to be disposed of as they should arise. To determine them in advance would require

CRIPPEN v. MORRISON.

special averments in the bill. Wurcherer v. Hewitt, 10. Mich. R., 453.

Judgment should be affirmed, with costs.

MARTIN Ch. J.:

Whatever may be the rule of the common law respecting fixtures, in the absence of any agreement of parties, it is well settled at this day that the contract. of parties will fix the character, and control the disposi tion of personal property, which, in the absence of a contract, would be held to be a fixture; in other words, the parties interested may control the legal effect of any transaction respecting such property by express agreement. Such was done in the case before us. The property which is the subject of this litigation was only erected upon the premises upon the agreement that it should be subject to a chattel mortgage for its purchase price. By this the parties kept it separate from the realty, and it never became part of it. Such mortgage was given, and kept good up to the bringing of this suit, and all the evidence shows that all the parties through whose hands the property has been transmitted, knew of such original agreement, and of the existence of such mortgage; and, as I think, it shows further, that the land was purchased by all with this property excluded. Crippen certainly never purchased it, for he bought with full knowledge of the property, and the claims of the defendants in error to it. His ownership of the decree does not aid him, for he bought the decree with such knowledge, and could not hold it, or claim under it with any rights superior to those from whom he purchased. His purchase at the sale barely confirmed his title to the land, as he acquired it by purchase of the decree nothing more.

The judgment of the Court below is affirmed, with

costs.

CHRISTIANCY J. did not sit in this case.

KENT V. MAY.

Henry A. Kent and Others v. William B. May and Others.

Construction of Contract. The plaintiffs being the holders of a promissory note for $1,414.98-100, made by the defendants, entered into an agreement with William B. May, by which in consideration of the endorsement to them by May and Cloyes of two promissory notes of Asahel Clapp and Son, as collateral security, and the agreement of said William B. May to pay $553.74-100, according to the terms of his note of that date to one Harris, to be applied on said note of defendants, it was agreed, on their part, that no proceedings should be instituted for the collection of said original note till one of the notes specified in said agreement as "assigned as collateral security" should have been dishonored by non- payment. The two notes of Clapp and Son having been paid, and May's note for $553.74-100 remaining unpaid, the plaintiffs, to recover the amount of the same, and interest, sued defendants on said original note; Held, That the payment of the notes of Clapp and Son discharged defendants from liability on said note.

Heard April 6th. Decided October 27th.

Case made after judgment from St. Joseph Circuit. Assumpsit on a promissory note executed by the defendants to the plaintiffs.

Plea, the general issue with notice of special matter. Trial by jury.

On the trial the execution of the note declared upon was admitted. It was proved that after the note of the defendants became due, and on the 11th September, 1857, Kent, Lowber and Smyth, the plaintiffs, entered into a written agreement with William B. May, one of the defendants, which agreement was in the following terms:

"In consideration of the endorsement by May and Cloyes to Kent, Lowber and Smyth, as collateral security of two promissory notes made by Asahel Clapp and Son, bearing date respectively August 24th, 1857; one for $500 at twelve months, the other for $453.74, at eighteen months; and the agreement of said May to pay the sum of $553.74 in sixty days from the present date, according to the terms of a promissory note of this date of William B. May, in favor of T. G. Harris, to be applied on a certain note made by William B. May, J.

KENT V. MAY.

W. Cloyes, Charles Cooper and John Hotchin, in favor of said Kent, Lowber and Smyth, dated September 14th, 1856, payable in four months from its date, for the sum of $1,414.98, it is stipulated and agreed on the part of said Kent, Lowber and Smyth that no proceedings shall be instituted for the collection of the last mentioned note, till either of the notes herein mentioned as assigned as collateral security for the payment of said note to Kent, Lowber and Smyth shall have been dishonored by non-payment."

It was also shown that the note for $553.74 was given for the balance of the defendants' note for $1,414.98, after deducting the amount of the Clapp notes, and the two notes of Clapp and Son had been paid: that the note for $553.74 had never been paid, and that William B. May had gone to California. The plaintiffs insisted that they were entitled to recover in this action the amount of said last mentioned note, but the Court charged the jury that by the payment of the Clapp notes the defendants were discharged from all liability on their note, and the plaintiffs could not recover. The plaintiffs excepted, and the jury, under charge of the Court, returned a verdict for the defendants.

Riley & Shipman for plaintiffs.

William Savier for defendants.

MARTIN CH. J.

The only question in this case is of the construction of a contract. In this we think the Circuit Judge was correct. The collaterals referred to in the agreement between May and the plaintiffs were very evidently the endorsed notes of Clapp and Son, for they are specified as such, while the individual note of May is not, but treated as distinct from such collaterals, and his agreement to pay it at maturity is maturity is made entirely

is

GILBEET V. HANFORD.

independent of the payment of the Clapp notes. I think it too obvious to need argument that the parties to the contract intended to separate the May note from what are mentioned in it as notes " 'assigned as collateral security." In fact the May note was not an "assigned" note, but an original note of the principal debtor for the balance over the amount of the assigned paper.

The judgment is affirmed.

CAMPBELL J. concurred.

William Gilbert v. Caroline Hanford.

Suit on Judgment — by whom brought. — A cannot maintain a suit in his own name on a judgment in favor of B, even though it be averred and proved that the judgment was rendered in A's favor, by the name of B by mistake.

Non-appearance of defendant in Justice's Court. When the defendant is duly

served with process in a Justice's Court, but does not appear, the plaintiff must prove his case in the same manner as if the defendant had appeared; the latter waives nothing by his non-appearance.

Variance in name how taken advantage of. When a written contract is sued upon, a variance in name may be taken advantage of under the general issue, and need not be pleaded in abatement.

Error to Wayne Circuit.

Heard October 13. Decided October 27.

This was an action of debt on a Justice's judgment. The plaintiff in error error (defendant below,) demurred to the plaintiff's declaration, and the demurrer was overruled. The defendant (below) then pleaded the general issue, and the cause was tried by the Court without a jury, and judgment rendered for defendant in error, (plaintiff below.)

The pleadings and facts are sufficiently stated in the opinion of the Court.