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of all property, personal and real, money, goods, chattels, evidences of debt, or effects of the principal defendant which such garnishee defendant received or held by a conveyance, transfer, or title that was void as to creditors of the principal defendant; and such garnishee defendant shall also be liable on any contingent right or claim against him in favor of the principal defendant."

"SEC. 35. If any person garnished shall have in his possession any of the property aforesaid of the principal defendant which he holds by a conveyance or title that is void as to creditors of the defendant, or if any person garnished shall have received and disposed of any of the property aforesaid of the principal defendant which is held by a conveyance or title that is void as to creditors of the defendant, he may be adjudged liable as garnishee on account of such property, and for the value thereof, although the principal defendant could not have maintained an action therefor against him."

We think, when the court found the facts that "there was a perfect understanding between Parkhurst & Co., Welsh, and Williams during the negotiations which led up to the sale;" that "all knew of and took into account the mortgages of Parkhurst & Co.;" that "it was understood that the amount Williams paid for the plant should be applied on the Parkhurst & Co. mortgage upon the plant, that such part of the plant as Williams purchased should be released from the mortgage, and that Parkhurst & Co. should hold the balance of the property as security for their claim,"-it was in error in concluding, as matter of law, that the payment of the $10,000 was nothing more than a payment pro tanto of the debt owing by Welsh to Parkhurst & Co., and that Parkhurst & Co. never received the proceeds of the property covered by the mortgage by virtue of a mortgage void as to creditors.

The evidence is returned in the record, and such evidence supports the findings of fact made by the trial court; but the facts found do not support the conclusions of law reached by the court. Mr. Parkhurst was sworn as a witness, and testified substantially that Williams was told

that the real-estate mortgage was not recorded; that it was arranged between the parties that Parkhurst & Co. should release their security under the chattel mortgage on the machinery; that this was done, and the mortgage was then filed, so that it might cover the balance of the personal property, securing the remaining debt of Parkhurst & Co. We think that the facts, lead inevitably to the conclusion that, by the arrangement that Parkhurst & Co. should release their mortgage on the property sold, Parkhurst & Co. received the proceeds of the chattel-mortgaged property, within the meaning of this, statute (3 How. Stat. § 8091), which provides that:

"If any person garnished shall have received and disposed of any of the property aforesaid of the principal defendant which is held by a conveyance or title that is void as to creditors of the defendant, he may be adjudged liable as garnishee on account of such property, and for the value thereof."

The taking of these mortgages, and leaving them off the record, was a fraud in law, if not in fact, against the plaintiff; for, during the time they were left off the record, the principal defendant was enabled to obtain credit, as he was apparently the owner of all the property, free and unincumbered. Having obtained this credit while the mortgages were kept from the record, the garnishee defendants could assert no rights under the mortgages as against the plaintiff. If they had taken the property under the mortgages, it is admitted that they would have been liable to garnishment, under the statute, for the value thereof. Instead of doing that, the parties got together, and, "taking the mortgages into consideration," arranged a sale to Williams, the garnishee defendants releasing the mortgages. In effect, the same result is reached as though the garnishee defendants had taken the property on the mortgages. By keeping them off the record, they had enabled Welsh to obtain a credit. After this was obtained, they put their mortgages on record, and now seek to shield themselves by saying that they did

not take this property; that they have none of the proceeds of it coming to them by a void mortgage; that it was a valid sale to Williams by Welsh; and that the proceeds of the sale, not obtained under the mortgage, were paid over to them on a valid debt. We think such a contention should not be sustained. In Folkerts v. Standish, 55 Mich. 463, there was no evidence that the lumber was turned out on the chattel mortgage, or that the defendant received or took possession of it under or by virtue of the mortgage, and it was therefore held that the court could not follow the proceeds into the defendant's hands. In Heineman v. Schloss, 83 Mich. 153, this garnishee statute was under consideration, and it was held that the defendant was liable as garnishee for the proceeds of the sale of the property taken under a void mortgage. It is true that in that case there was no question but that the property was received upon the mortgage; but we are of the opinion that this record shows that the proceeds of the sale received by the garnishees were in fact the proceeds of the mortgage. Mr. Parkhurst testified that Welsh could not dispose of the property without paying the mortgage, and that he so told Williams. This is what all the parties understood, and in arranging the sale they evidently treated the mortgages as though they were valid.

The judgment below must be reversed, and judgment entered here in favor of plaintiff, with costs of both courts. The other Justices concurred.

KEYES v. KONKEL.

REPLEVIN-HUMAN CORPSE.

A human corpse is not the "property" of the next of kin in such a sense as will authorize him to maintain replevin against undertakers refusing to surrender it.'

Error to Saginaw; Wilber, J. Submitted January 6, 1899. Decided March 23, 1899.

Replevin by John Keyes against Xavier B. Konkel and another. From a judgment for plaintiff, defendants bring error. Reversed.

James H. Davitt, for appellants.
Harris & Kendrick, for appellee.

MONTGOMERY, J. This is an action of replevin to recover the dead body of plaintiff's brother. The deceased died at a hospital, and defendants, who are undertakers, took charge of the corpse by request of the hospital authorities. The plaintiff, after the defendants had performed some services in fitting the body for burial, demanded possession of the body, and defendants refused to deliver the body up unless paid for their services. Thereupon plaintiff instituted this suit.

The question presented is whether replevin will lie in this State for a human corpse. The question is happily more novel than difficult. The statute (section 6856, 2 How. Stat.) provides for the proceeding of replevin in justice's court, and requires an affidavit by the plaintiff setting forth that his "personal goods and chattels" have been unlawfully taken or are unlawfully detained. The

'On the subject of rights and duties in regard to burial of the dead, there is a note to Larson v. Chase, (Minn.) 14 L. R. A. 85.

replevin statutes (2 How. Stat. §§ 8346, 8347) provide for a judgment for defendant, when the plaintiff fails in his case, for a return of the property or for its value. It is apparent that no return of the property can be ordered in case of the replevin of a dead body, and it is equally true that its value in money can neither be appraised nor ascertained by a jury. It was formerly held in England that there could be no property in a human body. Williams v. Williams, 20 Ch. Div. 659, also reported in 21 Am. Law Reg. 508; Guthrie v. Weaver, 1 Mo. App. 141; Meagher v. Driscoll, 99 Mass. 284 (96 Am. Dec. 759); Pierce v. Proprietors of Cemetery, 10 R. I. 227 (14 Am. Rep. 667); Weld v. Walker, 130 Mass. 422 (39 Am. Rep. 465). In certain modern American cases, a dead body has been said to be a quasi property, and the right to control and bury it, and to recover against one who mutilates the corpse, has been maintained. Pierce v. Proprietors of Cemetery, supra; Weld v. Walker, supra; Burney v. Children's Hospital, 169 Mass. 57 (38 L. R. A. 413, 61 Am. St. Rep. 273); Larson v. Chase, 47 Minn. 307 (14 L. R. A. 85, 28 Am. St. Rep. 370); Foley v. Phelps, (Sup.) 37 N. Y. Supp. 471. Recovery for the refusal of the right to bury or for mutilation of the body is rather based upon an infringement of a right than upon the notion that the property of plaintiff has been interfered with. The recovery in such cases is not for the damage to the corpse as property, but damage to the next of kin by infringement of his right to have the body delivered to him for burial without mutilation. In numerous cases equity has taken jurisdiction to prevent interference with the control of a dead body by persons entitled to control it. See Weld v. Walker, supra; Pierce v. Proprietors of Cemetery, supra. And in Reg. v. Fox, 2 Q. B. 246, the remedy by mandamus to a jailer was granted. But on every consideration we are of the opinion that replevin cannot be maintained.

It is not contended that the defendants are entitled to maintain a lien. It is obvious that return cannot be ad

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