Barbour v. White

• Decision Date: 30 April 1865
• Parties: POLLOCK BARBOUR et al.v.HAMILTON WHITE et al.
• Court: Illinois Supreme Court

37 Ill. 164

1865 WL 2800 (Ill.)

POLLOCK BARBOUR et al.

v.HAMILTON WHITE et al.

Supreme Court of Illinois.

April Term, 1865.

WRIT OF ERROR to the Superior Court of Chicago; Hon. GRANT GOODRICH, J.

Replevin by Horace White, to whom the defendants in error succeed as executors, to recover property claimed under a chattel mortgage. Verdict for the plaintiffs below. The facts are stated in the opinion of the court.

D. C. & I. J. NICHOLS, for plaintiff in error.

E. W. EVANS, for defendants in error. Mr. JUSTICE LAWRENCE delivered the opinion of the court:

In May, 1858, one Beers bought of Maher, one of the appellants, the furniture of a hotel in Chicago, known as the Adams House, paying him therefor $15,000 in liquors, and $5,000 in cash. At the same time he leased the hotel from Maher for a term of ten years, the rent payable monthly at the rate of one thousand dollars per month. The liquors at that time belonged to the firm of A. P. Kenyon & Co., and said sum of $5,000 was borrowed of one Horace White, now deceased, then a banker in Syracuse, New York, on the credit of one William Walter, one of the members of said firm. Beers, at the time of leasing the hotel, gave his four promissory notes to Walter for $5,000 each, maturing at two, four, six and eight months from date, and to secure their payment, also executed to Walter a mortgage upon the furniture in the hotel. Whether Beers, in this transaction with Maher, was dealing for himself, and had in good faith bought the liquors and borrowed the money, or whether he was really acting merely as the agent of Kenyon & Co., and allowing his name to be used to cover up their property, are questions in regard to which the evidence is contradictory, and as the case is to go before another jury it would be improper in us to express an opinion. Soon after the execution of the notes and mortgage from Beers to Walter, the latter assigned them to Horace White, of whom he had borrowed the money. In September, Beers sold his lease and the furniture to William L. Walter, a son of said William Walter, and gave him possession. The last note to Beers fell due on the 29th of January, 1859, and nothing having been paid on any of them, White, on the 2d of February, sued out a writ of replevin and replevied the furniture. The action was brought against William L. Walter as the tenant in possession, and also against various other persons supposed to claim an interest in the property. On the trial the plaintiff claimed through the mortgage from Beers to Walter, and the defendants Maher and Barbour claimed title under a mortgage executed on the 24th of August 1858, from Beers to Maher, purporting to be given to secure a note for $10,000, and also whatever rents might be due or accrue upon the hotel, which mortgage was subsequently assigned by Maher to Barbour. Horace White died pending the suit and it was revived and prosecuted in the name of his executors. They recovered a judgment, and the defendants' motion for a new trial having been overruled, they bring the case to this court.

It is urged by the plaintiffs in error, that Horace White, claiming merely as assignee of the mortgage, could not maintain this action, and reference is made to Olds v. Cummings, 31 Ills., 191. The point of that decision was that the assignee of a mortgage takes it subject to all the equities existing between the original parties. The court say in the opinion, “the assignee of a mortgage has no remedy upon it by law, except it be treated as an absolute conveyance, and the mortgagee convey the premises to the assignee by deed; and upon the question whether this can be done, the authorities are conflicting.” The court is here speaking of mortgages upon real estate. In the case before us the mortgagee not only assigned the notes to White, but also made a formal transfer to him of the mortgage and of the property described in it. This passed the legal title to this personal property as fully as the title to realty would pass by a conveyance under seal, by the mortgage, and as the ordinary remedy on mortgages of personalty is at law, for the purpose of reducing the property to possession and selling it for the debt, we can perceive no reason why the proceeding may not be had in the name of the assignee.

It is further urged by the plaintiffs in error, that the holder of the Walter mortgage lost its priority over that to Maher, by failing to take possession when the first note fell due and remained unpaid. The provision in the mortgage was as follows:

And provided, also, That it shall be lawful for the said Lewis P. Beers, his heirs, executors and administrators to retain possession of the said granted property, and at his own expense to keep, use and enjoy the same until Lewis P. Beers or his heirs, executors, administrators or assigns shall make default in the payment of the said sums of money above specified, either in principle or interest, at the time or times and the manner hereinbefore contained: or unless the said William Walter or his assigns shall fear diminution, removal or waste for want of proper care, or if the said party of the first part shall sell or assign, or attempt to sell or assign, said goods and chattels, or any part thereof, or if any writ issued from any court shall be levied on any part of the above described goods and chattels, that then, and in any of the aforesaid cases, all of said notes, both principal and interest, shall become due and payable; and the said party of the second part, his heirs, executors, administrators and assigns, agents or attorneys, or any of them, may elect thereupon to take possession of the said property, etc.

By this clause it is, in substance, provided that on the happening of any one of certain contingencies, all the notes though not due by their terms, shall become due and payable, and the mortgagee may elect to take possession of the mortgaged property. We are of opinion that the reasonable construction of this provision, when taken in all its parts, is, not that the notes shall become absolutely due, and the...