Forth v. Pursley

• Decision Date: 30 June 1876
• Citation: 82 Ill. 152,1876 WL 10159
• Parties: WILLIAM A. FORTHv.GEORGE PURSLEY.
• Court: Illinois Supreme Court

82 Ill. 152

1876 WL 10159 (Ill.)

WILLIAM A. FORTH

v.GEORGE PURSLEY.

Supreme Court of Illinois.

June Term, 1876.

APPEAL from the Circuit Court of Clay county; the Hon. JAMES C. ALLEN, Judge, presiding.

This was an action of trover against Forth, for the alleged conversion to his own use of the undivided half of a certain portable saw mill, alleged to have been, at the time of the conversion, the property of George Pursley.

The proof for plaintiff tends to show the following: The mill was bought in May, 1870, by Wm. Pursley and Wm. Jacks, and, in the spring of 1871, Wm. Pursley sold his interest to Wm. Jacks. In August, 1871, Jacks sold the whole of the mill to Wm. Pursley, and, soon after, Wm. Pursley sold half of the mill to Wheeler. On the 16th of September, 1871, Wm. Pursley executed a chattel mortgage to George Pursley, upon the undivided one-half of the mill, and upon other personal property, to secure the payment by William to George of $1015, on the 16th day of September, 1872, and interest thereon. The mortgage provided that William should retain possession until the maturity of the debt, unless George should “feel himself unsafe or insecure,” and, in that case, he should have the right to take possession and sell the property.

About the middle of October, 1871, Wm. Pursley offered to sell his half of the mill to George Pursley for $1000, and George said he would take it. On the 2d day of December, 1871, Charles Wheeler and George Pursley made a lease of the whole mill to Abbot and Falton for three months from that date, the rent to be paid in lumber. On the 4th day of December, 1871, George Pursley filed his mortgage for record.

On the 15th of December, 1871, a warrant for the collection of taxes from Wm. Pursley was issued to Wm. Songer, tax collector, which came to his hands on the 25th of the same month. Songer levied upon the mill by virtue of this tax warrant, and, having given due notice, sold the same at public sale, and Forth bid it off at $58, and paid that sum. At the time of the levy, the collector made no indorsement upon his warrant, nor did he take actual possession of the mill, but, on the day of the sale, the mill being in operation, he stopped it and made the sale, and turned the mill over to the purchaser. After this, the lessees, Abbot and Falton, paid rent to George Pursley for the use of the mill.

George Pursley testifies: “About a week after the mill was sold for taxes, I went to Forth and told him I had the money. He said he had a better thing, and would not let me have the mill. The mill is still on Forth's lot. * * * Wm. Jacks was present at the time. I offered Forth $100.”

Wm. Jacks testified: “After the tax sale, George Pursley got me to go and see Forth, and see if he would take his money back. He said he would not.” And, again, he says: “The mill was busted at the time of the tax sale. A short time after it was sold for taxes, I gave it up to Wm. Pursley.”

Forth testifies: “George Pursley never demanded one-half of the mill of me. * * * George Pursley never talked to me about one-half of the mill. He was always talking about buying the whole of the mill. I offered him the whole mill for $800. I have put a good deal of repairs on the mill, and have sold it conditionally.”

There are several witnesses who testify that George Pursley had said that he did not own the mill; that William wanted him to take it for the mortgage debt, but he refused.

Mr. H. H. CHESLEY, and Mr. BENJ. HAGLE, for the appellant.

Mr. B. B. SMITH, for the appellee.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

In actions of trover, it is essential that the plaintiff, at the time of the alleged conversion of the property, have had not only the right of property in the chattel, but the right to the immediate possession of the same. In this case, the only proof tending to show a conversion of the property by the defendant, is that in relation to a supposed demand made about a week after the sale of the mill for taxes, when the plaintiff swears the defendant “would not let me have the mill.”

The mill was leased on the 2d of December, by plaintiff and Wheeler, to Abbot and Falton, for three months from that date, and this demand and refusal were before these three months had expired. The right of possession (if the right of property was in plaintiff and Wheeler) was in the lessees at this time. In such case, plaintiff could not maintain trover. In the 2d vol. of Selwyn's Nisi Prius, 1364, it is said, “where a person leased a house, with...