Blatchford v. Boyden

• Decision Date: 11 November 1887
• Citation: 122 Ill. 657,13 N.E. 801
• Parties: BLATCHFORD and others v. BOYDEN.
• Court: Illinois Supreme Court

122 Ill. 657

13 N.E. 801

BLATCHFORD and others

v.BOYDEN.

Supreme Court of Illinois.

November 11, 1887.

Appeal from appellate court, First district.

This is an action of debt brought by the appellee, N. B. Boyden, coroner of Cook county, who sues for the use of Seth F. Hanchett, sheriff of Cook county, James H. Burke, John L. Barnum, Ralph Arthur, and Robert E. Jenkins, assignee of the estate of Josiah R. Butler, against E. W. Blatchford, C. F. Gates, and Nathaniel H. Blatchford, on the following replevin bond:

‘Know all men by these presents, that we, Eliphalet W. Blatchford, and Caleb F. Gates, and Nathaniel Hopkins Blatchford are held and firmly bound unto N. B. Boyden, coroner of the county of Cook, in the state of Illinois, and to his successors in office, executors, administrators, and assigns, in the penal sum of ten thousand dollars lawful money of the United States, for the payment of which sum we do hereby jointly and severally bind ourselves, our heirs, executors, and administrators. The condition of this obligation is such that whereas, on the seventh day of April, 1883, the said E. W. Blatchford and C. F. Gates sued out of the circuit court of Cook county aforesaid, a writ of replevin against Seth F. Hanchett, sheriff of Cook county, James H. Burke, John L. Barnum, Ralph Arthur, Robert E. Jenkins, assignee of the estate of Joseph R. Barker, defendants, for the recovery of the following goods and chattel property, to-wit, (being all furniture and fixtures, and everything of every kind and description now in the Massasoit House, belonging to Charles S. Munson.) Now, it the said Eliphalet W. Blatchford and Caleb F. Gates, plaintiffs, shall prosecute this suit to effect, and without delay, and make return of said property, if return thereof shall be awarded, and save and keep harmless the said coroner in replevying the said property, and pay all costs and damages occasioned by wrongfully suing out said writ of replevin, then this obligation to be void, otherwise, to remain in full force and effect.

‘Witness our hands and seals this seventh day of April, 1883.

‘ELIPHALET W. BLATCHFORD.

‘CALEB F. GATES.

‘NATHANIEL HOPKINS BLATCHFORD.’

The replevin bond was given in a replevin suit brought by the said E. W. Blatchford and C. F. Gates against the said Seth F. Hanchett, sheriff of Cook county, James H. Burke, John L. Barnum, Ralph Arthur, and Robert E. Jenkins, assignee of the estate of Joseph R. Barker,-the said Hanchett, as sheriff, having seized the goods and chattels described in the replevin bond under two executions, one in favor of John L. Barnum and Ralph Arthur, and against Charles S. Munson, and the other in favor of Robert E. Jenkins, assignee of the estate of Josiah R. Butler, against the same Charles S. Munson; the said goods and chattels being the furniture and fixtures of a hotel in the city of Chicago, known as the ‘Massasoit House,’ and being in the possession of the said Munson at the time of the seizure under the executions. The merits of the replevin suit were not tried, said suit being dismissed by the plaintiffs. Subsequently this suit was brought on the replevin bond, to which the defendants, the present appellants, pleaded ‘ non est factum,’ and the fact that the merits of the case in said action of replevin were not determined. Issues were joined and the case proceeded to trial, verdict against defendants for $2,543.50, and judgment thereon.

When the goods had been seized under the levy made by the sheriff, the appellants were told by the sheriff that the levy was made under one execution against Charles S. Munson in favor of John L. Barnum and Ralph Arthur, and another against the same Charles S. Munson, in favor of Robert E. Jenkins, assignee of the estate of Joseph R. Barker, and in the replevin bond reference was made to the replevin suit as being brought by the said E. W. Blatchford and C. F. Gates against Seth F. Hanchett, sheriff, etc., J. L. Barnum, Ralph Arthur, and Robert E. Jenkins, assignee of the estate of Joseph R. Barker. Subsequently the sheriff obtained an order allowing him to amend his return in said suit of Robert E. Jenkins, assignee of the estate of Josiah R. Butler, and thereafter, in the said replevin suit, the name of the party defendant, Robert E. Jenkins, assignee of the estate of Joseph R. Barker, was changed to Robert E. Jenkins, assignee of Josiah R. Butler. Objection was duty made at the trial to the admission of any evidence by which the appellants should be held liable under the replevin bond on account of the execution in favor of Robert E. Jenkins, assignee of Josiah R. Butler. The claim of the appellants and obligors in said bond to the goods and chattels described in said replevin bond arose under a chattel mortgage dated April 5, 1883, given on the same goods and chattels by the said Charles S. Munson to the said E. W. Blatchford and C. F Gates to secure the purchase money of the said goods and chattels sold by them to the said Munson. The sale was made on the morning of April 5, 1883, by the said E. W. Blatchford and C. F Gates, mortgagees, by virtue of the terms and provisions of a chattel mortgage on the same property dated April 4, 1881, given to them by the said Charles S. Munson. Under the terms and provisions of the chattel mortgage dated April 4, 1881, the said mortgagees therein took possession of the said goods and chattels for default, etc., early on the morning of April 5, 1883, and thereupon sold the said goods and chattels to the said Charles S. Munson on credit, at private sale, and took back the chattel mortgage dated April 5, 1883, to secure the purchase money of said sale, and the said foreclosure, sale, and the taking back of said chattel mortgage, were all parts of one and the same continuous transaction. On April 6, 1883, the sheriff, holding two executions issued and delivered to him several days prior, levied on the goods and chattels described in the chattel mortgage. Before he made his levy the sheriff was told that the mortgage of April 4, 1881, had been foreclosed, and that the goods and chattels described therein had been sold, and that a new mortgage had been taken back for the consideration money of the property. Abst. p. 33; Rec. p. 251. Notwithstanding, he proceeded to seize the goods, and on the following day they were replevied in the said replevin suit brought by E. W. Blatchford and C. F Gates, and the replevin bond sued on in this suit was given. There was no dispute or conflict of evidence as to what was done by the said E. W Blatchford and C. F. Gates in taking possession under the chattel mortgage of April 5, 1883; and that the goods were sold under said mortgage at private sale, on credit, to said Charles S. Munson, and that the chattel mortgage of April 5, 1883, was given to secure the purchase money, and acknowledged and recorded.

The appellants also asked the court to give several instructions, one of which is as follows: ‘(2) If the jury believe from the evidence that default was made in the payment of two of the said notes, and that on the morning of the fifth day of April, 1883, the said Blatchford and Gates took possession of and foreclosed all of the said property covered by the said chattel mortgage, and sold the same at private sale to the said Charles S. Munson, and took back a chattel mortgage and notes to secure the purchase money of said goods and chattels, which was duly acknowledged and immediately filed for record in the recorder's office of Cook county, Illinois, and that the sale was made in good faith, and was a fair and honest sale, then the jury are further instructed that the said sale to Munson, and the said chattel mortgage so signed, acknowledged, and recorede, was a first lien upon the said goods and chattels covered by the said mortgage, to the exclusion of any judgment creditors of the said Munson.’ But the court refused to give the same, and added the following modifications: ‘Provided that the jury believe from the evidence that the said Blatchford and Gates had taken possession of the said property, and that the said mortgage had been recorded prior to the delivery of said property to Munson by said Blatchford and Gates, and then the jury will assess nominal damages in favor of the plaintiff.’ The modification is assigned as error.

SHOPE, J.

The declaration filed in this case is in the usual form, except that it is averred that said Robert E. Jenkins, as assignee of Josiah R. Butler, was plaintiff in execution in one of the executions levied by said sheriff, etc., and was incorrectly described in said bond as assignee of Joseph R. Barker. Defendant pleaded non est factum and two special pleas in mitigation, setting up that the merits of the case had not been determined in...