Frank v. Miner

• Decision Date: 30 June 1869
• Parties: HARVEY FRANKv.HENRY MINER.
• Court: Illinois Supreme Court

50 Ill. 444

1869 WL 5249 (Ill.)

HARVEY FRANK

v.HENRY MINER.

Supreme Court of Illinois.

June Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Clay county; the Hon. R. S. CANBY, Judge, presiding.

The facts in this case are fully presented in the opinion.

Mr. SILAS L. BRYAN, for the appellant.

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

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of replevin, brought by appellant in the Clay Circuit Court, against appellee, for the recovery of two horses, a two-horse wagon and harness. To the declaration defendant filed four pleas: 1st, non cepit; 2d, property in defendant; 3d, property in one Garret R. Garretson, and 4th, non detinet. On these pleas issues were joined, and a trial was had by the court and a jury.

It appears from the evidence, that John Frost was indebted to appellant in the sum of several hundred dollars, and to secure the same, executed a chattel mortgage on this and other property; that the mortgage was acknowledged before a justice of the peace of a different precinct from that in which the mortgagor resided, the only justice of the peace of that township having informed appellant, a short time previous, that he would do no business as a justice. The mortgage bears date the 14th day of January, 1868, and contains a provision that Frost might retain possession until default, but if appellant should at any time feel that the property was insecure, he might reduce it into his possession and sell it. Appellant, finding that Frost was selling the property, was preparing to take the horses, wagon and harness in dispute, into possession, when appellee took the property under a mortgage executed by Frost on the same property, to Garret R. Garretson, dated the third day of February, 1868, and like appellant's, was acknowledged in a precinct different from that in which Frost, the mortgagor, resided. This latter mortgage contained a clause similar to that in appellant's mortgage. A few hours after appellee obtained possession of the property, appellant demanded it, when, as he and another witness swear, appellee refused to give it up, but said he was sorry for what he had done, said he knew nothing about it, and that Garretson did not tell him to take possession, but appellee said, as he had taken the property he would not surrender it unless it was taken according to law.

Garretson states that he took the mortgage, and that it was to secure a just debt; that he left it to be recorded, and told appellee to get it and keep it; that he knew the property was sufficient to pay both debts, and he expected appellant's to be first paid; that his nephew, appellee, wrote him what he had done, and he approved of it, and he considered appellee his agent.

Appellee testified that Frost was his kinsman, and that the latter had applied to him the day before he took the property, to borrow money or to get him to become his surety, but he refused; that on the day he took the property, Frost and Whittlesy, an attorney, advised him to take it under the Garretson mortgage; that he went to the recorder's office and got the mortgage, and then went to Frost and got the property, and handed the mortgage to Frost, but did not tell him he was acting as the agent of Garretson; that Garretson told appellee to get the mortgage from the recorder, and attend to it for him; that he did not remember saying to appellant that he was sorry for what he had done, and swears “positively, that he did not say so.” He, on the same day, went to the justice of the peace in the precinct in which Frost resided, to get a new mortgage, but that officer was not acting, and he failed to procure one. He says he was acting as the agent of Garretson. On this evidence the jury found the issues for the defendant, and plaintiff thereupon entered a motion for a new trial, which was overruled by the court...