Duzor v. Allen
| Decision Date | 30 September 1878 |
| Citation | 1878 WL 10193,90 Ill. 499 |
| Parties | ISAAC VAN DUZORv.G. H. ALLEN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Iroquois county; the Hon. N. J. PILLSBURY, Judge, presiding.
Mr. M. B. WRIGHT, and Mr. ROBERT DOYLE, for the appellant.
Messrs. BLADES, KAY & EVANS, for the appellee.
It appears that one Gaston purchased of Van Duzor a threshing machine, but they seem to disagree as to the terms of purchase. Van Duzor claims Gaston was to give notes, with certain persons agreed upon as sureties. Gaston claims he was to give his notes and a chattel mortgage on the machine. Neither notes nor security of any kind was given. Van Duzor gave Gaston an order to get the machine, which was then at Gilman. He went for and got it and brought it to Clifton, where they resided, and left it over night in the street in front of Van Duzor's office, and took it away next morning to use in threshing grain. Gaston continued to so use it from about the 7th of September until the middle of November, 1875. Van Duzor seems to have known he was so using the machine, having seen him threshing for Hethinger, and several times inquired how the machine worked.
It also appears that one Campbell and one Kinson worked for Gaston whilst engaged in threshing. Campbell seems to have furnished four horses to work on the machine during all the time it was run, for which or for his labor Gaston paid him nothing, nor did he pay Kinson anything, and on the 22d day of November, 1875, he confessed a judgment in favor of Campbell for $184, for his labor and the use of horses, and on the same day he confessed a judgment before the same justice of the peace, in favor of Kinson for $57 for his labor, and they both swore out executions and placed them in the hands of a constable, who levied them on the machine, on the 23d of the month, and Van Duzor brought an action of replevin to recover the thresher, and on the 29th, it was, by virtue of the writ of replevin, taken by the sheriff from the constable.
Among other pleas, the defendant justified under these executions, and claimed the right to hold the property under the levies thereunder. A trial was had, resulting in favor of defendant, and that the property was subject to levy under the executions. A motion for a new trial was overruled and judgment entered on the verdict, and plaintiff appeals and asks a reversal.
It clearly appears, from the evidence, that, as between appellant and Gaston, the trade was not so far executed as to pass the title to the property to the latter. As between them, appellant could, no doubt, have maintained replevin for its recovery. But the question is presented, whether or not there was such a sale and delivery as to render the property liable to levy and sale on execution against Gaston;--whether it was not such a sale and delivery as passed the title to the purchaser as to creditors or purchasers without notice.
In the case of Brundage v. Camp, 21 Ill. 330, there was a full and careful review of the authorities, both English and American, and the rule announced, that where a party sells goods to another and delivers them to the purchaser, although it is agreed the purchaser shall give a note with security at a future day, a sale by the purchaser to another without notice will pass the title to the latter, and he will hold the goods as against the first vendor. It was there said, as the conclusion reached after the review of authorities, that the first vendor having trusted his vendee by making a sale and delivery of the mules to him, and having put it in his power to defraud others by a sale of them, an innocent purchaser of the property for a valuable consideration, without notice, ought to be protected, and the cases of Morris v. Grover, 2 Scam. 528, Jennings v. Gage, 13 Ill. 610, Murch v. Wright, 46 Id. 487, McCormick v. Hadden, 37 Id. 370, and Michigan Central Railroad Company v. Phillips, 60 Id. 190, and other cases in this court, all recognize the same doctrine.
A bona fide creditor, who, under a judgment and execution, acquires a lien on property thus situated, occupies the same position in all respects as does a bona fide purchaser. Where the apparent owner of property thus acquired has the indicia of ownership and may sell and pass a good title to a purchaser, without notice, a bona fide creditor may seize the property on execution and sell it thereunder and pass the title, not only against the apparent, but also the real owner. The creditor and purchaser stand on the...
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