Charles v. Neigelsen

• Decision Date: 31 March 1884
• Parties: WILLIAM W. CHARLESv.ERNEST NEIGELSEN.
• Court: United States Appellate Court of Illinois

15 Ill.App. 17

15 Bradw. 17

WILLIAM W. CHARLES

v.ERNEST NEIGELSEN.

Appellate Court of Illinois, First District.

March Term, 1884.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Cook county; the Hon. RICHARD PRENDERGAST, Judge, presiding. Opinion filed May 20, 1884.

This was an action of replevin to recover possession of a horse, gig and harness, brought by William W. Charles against Ernest Neigelsen, before a justice of the peace, and afterward taken by appeal to the county court. A trial was had in the county court, before the court without a jury, upon an agreed state of facts, resulting in a finding and judgment for the defendant. The facts, as agreed upon, are substantially as follows:

On the 18th day of October, 1883, one H. C. Block was the owner and in possession of said horse, gig and harness, the same being of the value of $75. On that day he executed and delivered to said Charles a good and valid chattel mortgage of said property, to secure the payment of three promissory notes of even date with the mortgage, one for $18.75, due November 18, 1883; one for $17.75, due December 18, 1883; and one for $1, due one year from date. Said mortgage was duly acknowledged and recorded on the day of its date, and in all respects complied with all the provisions of the statute. Said mortgage contained the usual clause authorizing the mortgagor to retain possession of said property, and to use it, at his own expense, until the maturity of the notes; also, that if the mortgagor should fail to pay any of said notes when due, or the mortgagee should feel himself insecure or fear the removal of said property, he, the mortgagor, should have the right to take immediate possession thereof and sell and dispose of the same.

The defendant, at the time of the transactions in question, was the keeper of a public livery stable. On the 23d day of October, 1883, the mortgagor still having the possession of said property under the terms of said mortgage, without the knowledge or consent of the mortgagee, placed said horse, gig and harness in the defendant's stable to be kept by him in his capacity of livery and stable keeper, for said mortgagor, and said property has remained with said defendant from said 23d day of October, 1883, hitherto.

On the 24th day of November, 1883, three days before the commencement of this suit, the plaintiff for the first time learning as to the whereabouts of said property, and one of said notes having become due, and the mortgagee having reasonable grounds for feeling unsafe and insecure, demanded of the defendant the possession of said property, claiming the same under and by virtue of said mortgage, and the defendant then and there refused to deliver up said property or any part thereof to the plaintiff, until the defendant should be paid the sum of $23, which he claimed was due him for the keeping of said mortgaged property subsequent to October 23, 1883. It is agreed that said sum is a reasonable charge for said keeping. The plaintiff declined to pay said claim, and on the 27th day of November, 1883, brought this suit.

The officer failing to seize said property under his writ, the suit was changed to trover and prosecuted as such.

Messrs. WYMAN BROS., for appellant; that the lien of the chattel mortgage is prior to that of the stable keeper, cited Sargent v. Usher, 20 Am. R. 208; Jacobs v. Knapp, 50 N. H. 82; Saltus v. Everett, 20 Wendell, 282; 2 Redfield on Railways, 171; Robinson v. Baker, 5 Cushing, 137; Barque Great West v. Oberedorf, 57 Ill. 169; Stevens v. B. & W. R. R. Co., 8 Gray, 262; Clark v. L. & L. R. R. Co., 9 Gray, 231.

Mr. M. R. HARRIS, for appellee.BAILEY, J.

The plaintiff claims the property described in the replevin writ by virtue of a chattel mortgage executed to him by the owner, and which is admitted to be in all respects valid. The defendant claims it by virtue of a lien acquired by him, subsequent to the execution of the mortgage, as a stable keeper, under the forty-ninth section of the statute in relation to liens. The only question in the case is as to which of these parties has the prior or superior lien.

The section of the statute above referred to is as follows: “Stable keepers, and any persons, shall have a lien upon the horses, carriages and harness kept by them for the proper charges due for the keeping thereof and expense bestowed thereon at the request of the owner, or the person having possession thereof.”

This statute is recent, and we are not aware that it has as yet received any authoritative exposition. Our conclusions then must necessarily be largely matter of first impression.

The plaintiff, as the holder of the chattel mortgage, was the general owner of the property, subject to the mortgagor, Block's, right of redemption, the possession for the time being remaining in Block.

The expense of keeping the property so long as Block retained possession, devolved upon him. This resulted not only from his relations to the property, but also from the express stipulations of the mortgage. If he saw fit to hire it kept, the liability thereby incurred was his own debt. He was in no sense the plaintiff's agent, nor did he sustain to the plaintiff any relations which authorized him to contract any liability on his behalf. The plaintiff's interest in the property was in no way placed at his disposal or under his control. If he had attempted to sell it he could have given no title; or if to mortgage it, the mortgage would have had no validity. He had an undoubted right to deal with his own...