Durfee v. Grinnell

• Decision Date: 30 September 1873
• Citation: 69 Ill. 371,1873 WL 8473
• Parties: OTIS DURFEEv.W. H. GRINNELL et al.
• Court: Illinois Supreme Court

69 Ill. 371

1873 WL 8473 (Ill.)

OTIS DURFEE

v.W. H. GRINNELL et al.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kankakee county; the Hon. CHARLES H. WOOD, Judge, presiding.

Mr. STEPHEN R. MOORE, for the appellant.

Mr. W. S. DECKER, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellees brought replevin, for the recovery of various articles of property, against appellant. The declaration was in the usual form, containing a count for taking and another for detaining the property. Appellant filed pleas of non cepit, non detinet, property in Hanna, property in Fairville, and a plea of justification under an execution, directed to appellant, as sheriff, from the circuit court of Kankakee county, in favor of Hanna and against appellee Brown, and that the property belonged to Brown, and was seized to satisfy the execution. Replications were filed and issued were formed.

Appellees read in evidence a mortgage on the property in dispute, executed by A. P. Brown to appellees, on the 19th day of June, 1871, to secure two promissory notes, one due to each mortgagee. The mortgage, so far as we can see, was properly executed, duly acknowledged before a justice of the peace, the proper entry was made in his docket, and the instrument duly recorded in the proper office, all before the execution was issued. The mortgage provides that the mortgagor may retain possession of the property until the maturity of the notes, unless the mortgagees should, at any time before the maturity of the notes, feel unsafe or insecure, when they were authorized to take possession of the property and sell it, on giving the required notice, and pay the notes, expense, etc., and any surplus to be paid to the mortgagor.

After the levy was made, the mortgagees reduced the property to possession, through the writ of replevin, and after giving the notice required, had it sold. The jury on the trial in the court below found the issues for the plaintiffs, and defendant appeals to this court.

It is first urged that there was a misjoinder of parties plaintiff in this case, and that the circuit court erred in refusing to dismiss the suit for that reason. There can be no question that a chattel mortgage is but a conditional sale, and when the mortgagor fails to perform the condition, the title, so far as it is held by the mortgagor, vests in the mortgagee. In this case, the condition upon which the property was to vest was, that the mortgagees should feel themselves unsafe or insecure. They reserved the right in the mortgage to exercise the power, and when they did so the title to the property vested in the mortgagees. But, according to the stipulation contained in the mortgage, when they took the property they became liable to pay the mortgagor for any surplus that might remain after the mortgage debt, interest and proper charges were paid. But this liability in nowise prevented the title from vesting in them as joint purchasers. Their several debts. so far as they were paid by the sale of the property, formed the consideration which they paid. Being joint owners, they were bound to sue jointly. There is no force in this objection.

It is conceded that the mortgage is regular in every particular, except the justice of the peace dated the acknowledgment in 1872 instead of 1871, the latter of which dates being the true time when it was acknowledged. This, the parties stipulate, is true, in fact. The entry in the justice's docket was not, so far as we are able to find, read in evidence, and we therefore infer that it bears the...