Barchard v. Kohn

Citation41 N.E. 902,157 Ill. 579
PartiesBARCHARD et al. v. KOHN.
Decision Date11 October 1895
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Appeal from appellate court, First district.

Action of trespass by Josephine Kohn against Ira Barchard and H. C. T. Borrmann. Plaintiff obtained judgment, which was affirmed by the appellate court. 54 Ill. App. 629. Defendants appeal. Reversed.Jesse Holdom, for appellants.

Moran, Krause & Mayer, for appellee.

This is an action of trespass, begun on April 14, 1891, by appellee against appellant Borrmann, a dry-goods merchant, and appellant Barchard, a constable, for the alleged unlawful taking and carrying away of a stock of goods claimed to be the property of appellee, and entering for that purpose into the store No. 931 West Eighteenth street in Chicago, on April 13, 1891, where the goods were then located. Three pleas were filed: The first, not guilty. The second, averring that plaintiff, Josephine Kohn, was the wife of William Kohn; that William Kohn was the owner of the goods and chattels on June 16, 1890, and on that day executed a chattel mortgage upon the same to the defendant Borrmann to secure $3,000, of which $2,000 remained unpaid at the time of the alleged trespass; that Borrmann, by his agent, Barchard, took possession of the property under said mortgage, and, in pursuance of its terms, the property was sold at public auction on May 2, 1891, for $421.40, an amount insufficient to pay what was due upon the mortgage. The third plea sets up that the entry into the premises was made in a quiet and peaceable manner, and without unnecessary damage, in order to take the goods under the mortgage. The trial in the circuit court was before the court and a jury, and resulted in verdict and judgment for $800 in favor of plaintiff. The judgment has been affirmed by the appellate court, and an order has been made by that court certifying that the cause involves questions of law of such importance on account of collateral interests involved that it should be passed upon by the supreme court. The case is brought here by appeal from the judgment of the appellate court.

The material facts necessary to present the question involved are as follows: The chattel mortgage was given to secure 29 notes executed by William Kohn to Borrmann, dated June 16, 1890, 28 of which were each for $100, payable weekly thereafter, and the twenty-ninth was for $200, payable on March 1, 1891; so that all the notes had been due for some two weeks before the levy of the executions hereinafter named. The mortgage was not recorded until July 26, 1891, long after the present trespass suit was begun. On March 18, [157 Ill. 581]1891, the mortgagor, William Kohn, executed two judgment notes,-one for $98.52, to D. Liebman, and one for $231.27, to A. Lewin & Sons. On the next day, March 19, 1891, judgments were entered up upon these notes, and executions issued and placed in the sheriff's hands, the sheriff receiving the Lewin execution at 10:55 a. m. and the Liebman execution at 11 a. m. of that day. On the same day the appellant Borrmann, learning of these judgments, caused judgment for $2,000 to be entered up upon 18 of the notes secured by his chattel mortgage then remaining unpaid, and execution to be issued thereon, the sheriff receiving said execution at 4 o'clock in the afternoon of March 19, 1891. On the same day, and in the order in which they came to the hands of the sheriff, the three executions were levied upon the property included in the chattel mortgage. The next day, Kohn, the judgment debtor, presented a schedule, and asked to have his legal exemptions set off to him out of the property levied upon under the provisions of the exemption law of this state. 1 Starr & C. Ann. St. p. 1112, c. 52, § 14, Appraisers were appointed, and on March 26, 1891, Kohn selected, and there was set off to him as exempt, property to the amount of $400, being a part of the property covered by the chattel mortgage. Subsequently the balance of the property levied upon, after taking out the exemptions, was sold under the executions, and out of the proceeds of the sale the Lewin and Liebman executions were paid in full, and the remainder of the proceeds were, on March 30, 1891, applied upon the execution of the appellant Borrmann, leaving still due to him upon his judgment about $950. It is claimed by appellee that her husband, William Kohn, owed her $250 when the executions were levied; that he paid $100 of this amount to her on March 19, 1891, and in payment of the remaining $150 turned over the exempt property, amounting to about $400, to her by first transferring it to one Adolph Cohen, who, on or about March 26, 1891, transferred it back to appellee. All instructions asked by the defendants submitting to the jury the question whether the property really belonged to the plaintiff were refused. It was this exempt property which the appellants took under the mortgage on April 13, 1891, for the purpose of satisfying pro tanto the $950 remaining due thereon, and which was sold, after the giving and posting of notice as required by the mortgage, at public auction, on May 2, 1891, as alleged in the pleas.

MAGRUDER, J. (after stating the facts).

The question in the case is whether the appellant Borrmann, mortgagee in the chattel mortgage, had a right to take possession under his mortgage of the goods set off as exempt to William Kohn, the judgment debtor and mortgagor, or whether, by taking judgment upon the notes secured by the mortgage, and levying the execution issued thereon upon the mortgaged property, and allowing a part of the proceeds of the sale made under the executions to be applied upon the judgment, he thereby waived his right to proceed under his mortgage against the portion of the mortgaged property not sold under the executions, and set off as exempt to the judgment debtor. The question arises out of the ruling of the trial court excluding the chattel mortgage when offered by the defendants as a justification of the alleged trespass, and admitting it only in mitigation of damages, and also out of the action of the court in instructing the jury that as a matter of law the chattel mortgage did not justify the defendants in seizing the goods in question. As the mortgage was not recorded, and provided for the sale of the goods mortgaged in the ordinary course of business, it was void as to creditors, but it was good as between the parties to it. Gregg v. Sanford, 24 Ill. 17;Forest v. Tinkham, 29 Ill. 141;McDowell v. Stewart, 83 Ill. 538; Jones, Mortg. (4th Ed.) § 138; Greenebaum v. Wheeler, 90 Ill. 296;William Deering & Co. v. Washburn, 141 Ill. 153, 29 N. E. 558.

The main case which holds that an attachment of the mortgaged property by the mortgagee for the mortgage debt is a waiver of his lien under the mortgage is Evans v. Warren, 122 Mass. 303. The decision in that case was placed upon the ground substantially that the liens created by mortgage and by attachment upon the same property are essentially different, and cannot coexist, for the reason that under the Massachusetts statutes the equity of redemption of personal property is not subject to attachment, and hence, if the mortgagee causes an attachment to issue against the mortgaged property, it is a waiver of the mortgage lien. The cases which hold that the attachment operates as a waiver of the plaintiff's rights under the mortgage do so upon the general grounds that a person cannot avail himself of inconsistent remedies in relation to the same matter, and, having chosen and carried into effect one remedy, he cannot resort to a different one, involving a repudiation of the grounds upon which the first one was based; that the suit on the mortgage and the attachment suit were inconsistent, because the one proceeds upon the ground that the mortgagee is the owner of the property, and the other upon the ground that the mortgagor thereof is owner; that when the debt matured the mortgagee had the right to take the property under the mortgage, he having the legal title, subject only to a right of redemption; and that by bringing the attachment suit he elected to treat the property as the property of the debtor, and cannot, by seeking to enforce his mortgage, assert an ownership and right of possession in himself antedating the attachment. The reasoning in Evans v. Warren, supra, was held to be unsatisfactory, and its doctrine was repudiated in Byram v. Stout, 127 Ind. 195, 26 N. E. 687. In the latter case the mortgagee in a chattel mortgage brought an action to foreclose it, and junior mortgage set up as a defense that the complainant had previously brought suit upon the evidences of debt secured by his mortgage, and had therein issued a writ of attachment, and levied it upon the mortgaged property, and had thereby released his mortgage lien; but the court held that the attachment was not a waiver of the mortgage lien, and did not estop the mortgagee from claiming under his mortgage, basing its decision mainly upon the ground that in Indiana the mortgagee in a chattel mortgage is a mere lien holder. Jones, Mortg. § 565. In support of the conclusion that the mortgagee of personal property is a mere lien holder, Indiana decisions are there referred to, holding that personal property under mortgage may be levied upon and sold by execution subject to the mortgage lien. The case of Howard v. Parks, 1 Tex. Civ. App. 603, 21 S. W. 269, follows the case of Byram v. Stout, supra, holding that a mortgage lien upon personal property is not waived by suing out an attachment upon the debt secured by the mortgage, and that in Texas a chattel mortgage has the effect of a lien on the property.

There can be no doubt that the chattel mortgage act of Illinois recognizes a lien as existing under the mortgage upon the property mortgaged. Section 1 thereof speaks of a mortgage, trust deed, or other conveyance of personal property ‘having the effect of a mortgage or lien upon such property.’ 2 Starr &...

To continue reading

Request your trial
23 cases
  • In re Whiters
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Indiana
    • 2 Febrero 2006
    ... ... Barchard v. Kohn, 157 Ill. 579, 585, 586, 41 N.E. 902, 29 L.R.A. 803. The substance of the transaction is this, and nothing more, that the mortgagor, a ... ...
  • In re Tsikouris
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Indiana
    • 30 Marzo 2006
    ... ... Barchard v. Kohn, 157 Ill. 579, 585, 586, 41 N.E. 902, 29 L.R.A. 803. The substance of the transaction is this, and nothing more, that the mortgagor, a ... ...
  • Madson v. Rutten
    • United States
    • North Dakota Supreme Court
    • 23 Octubre 1907
    ... ... Byram v ... Stout, 127 Ind. 195, 26 N.E. 687; Thurber [16 ... N.D. 290] v. Jewett, 3 Mich. 295; Ellinwood v ... Holt, 60 N.H. 57; Barchard v. Kohn, 157 Ill ... 579, 41 N.E. 902, 29 L. R. A. 803 ...          This ... brings us to appellant's assignments of error relating to ... ...
  • Madson v. Rutten
    • United States
    • North Dakota Supreme Court
    • 23 Octubre 1907
    ...the mortgage. Byram v. Stout, 127 Ind. 195, 26 N. E. 687;Thurber v. Jewett, 3 Mich. 295;Ellinwood v. Holt, 60 N. H. 57;Barchard v. Kohn, 157 Ill. 579, 41 N. E. 902, 29 L. R. A. 803. This brings us to appellant's assignments of error relating to the rulings of the trial court as to the admis......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT