67 Ill. 274 (Ill. 1873), McConnell v. Scott

Citation:67 Ill. 274
Opinion Judge:Mr. Justice Walker.
Party Name:ANDREW B. MCCONNELL v. WILLIAM T. SCOTT
Attorney:Messrs. CULLOM & ZANE, for the plaintiff in error. Messrs. ROBINSON, KNAPP & SHUTT, for the defendant in error.
Court:Supreme Court of Illinois
 
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Page 274

67 Ill. 274 (Ill. 1873)

ANDREW B. MCCONNELL

v.

WILLIAM T. SCOTT

Supreme Court of Illinois, Central Grand Division

January, 1873

WRIT OF ERROR to the Circuit Court of Sangamon county; the Hon. JOHN A. MCCLERNAND, Judge, presiding.

Judgment affirmed.

Messrs. CULLOM & ZANE, for the plaintiff in error.

Messrs. ROBINSON, KNAPP & SHUTT, for the defendant in error.

OPINION

Mr. Justice Walker.

This was an action of replevin, brought by defendant in error, in the Sangamon circuit court, against plaintiff in error, to recover a lot of stock and other personal property which plaintiff in error had levied upon as the property of N. J. Shropshire. It is agreed that Shropshire occupied a farm of defendant in error, situated in Sangamon county, and was justly indebted for rent already due, and for rent to become due; and on the 5th day of January, 1871, he executed

Page 275

to defendant in error a chattel mortgage on a large quantity of personal property, to secure the payment of rent due for the use of the farm of defendant in error, the time for the payment of which was extended until the 4th of October, 1874, and for rent that would accrue during that year, and which was payable on the 1st day of January, 1872.

The mortgage states that the amount of the rents then due had not been adjusted, nor was the amount of rent falling due on the 1st of January, 1872, named in the mortgage. The condition of the mortgage was for the payment of the rent in arrear by the fourth day of the next October, and for the rent that was to accrue, by the first of the next January, and all interest that should accrue. The mortgage provided for the retention of the property by the mortgagor until default should be made, and if the money should not be paid at the times mentioned, the mortgagor was required to surrender the property to the mortgagee, and on failure to pay the money, etc., the mortgagee was authorized to take possession, and, after giving five days' notice, to sell the same, pay the rents, and pay to the mortgagor any surplus that might remain. The mortgage was properly executed, acknowledged and recorded.

The money already due for rents not having been paid on the 4th of October, the date to which the payment had been extended, on the 5th, defendant took possession and gave notice that the property would be sold, at which time it was offered...

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