Gaar v. Silas Hurd.

• Decision Date: 30 June 1879
• Citation: 92 Ill. 315,1879 WL 8527
• Court: Illinois Supreme Court
• Parties: GAAR, SCOTT & CO. et al.v.SILAS HURD.

92 Ill. 315

1879 WL 8527 (Ill.)

GAAR, SCOTT & CO. et al.

v.SILAS HURD.

Supreme Court of Illinois.

June Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Clinton county; the Hon. AMOS WATTS, Judge, presiding.

Mr. G. VAN HOOREBEKE, for the appellants:

The fact that a chattel mortgage which is not properly acknowledged has been recorded, will not give it validity as against third persons. Frank v. Miner, 50 Ill. 444.

The mortgagee did not reduce the property to possession. He must obtain actual possession before other rights accrue. Frank v. Miner, 50 Ill. 444; Wilson v. Pearson, 20 Id. 87. There must be a change of possession. Ketchum v. Watson, 24 Ill. 591, 592. Actual possession must be taken, and the burden of proof is on the plaintiff. Am. Law Reg., vol. 6, p. 693; 53 Penn. State, 256; Houston v. Howard, Am. Law Reg., vol. 6, p. 438. What is said in Freeman on Executions, page 431, concerning the levy of an officer, is applicable here: “The change of possession must be actual and substantial, and not merely formal or colorable.”

The mortgagee failed to reclaim the property after it had been attached for the debt of another, and taken into possession by the officer. This should operate to estop him from afterwards claiming under his mortgage.

An estoppel may arise from passive conduct. Bigelow on Estoppel, 500. Silence is held to work an estoppel. Id. 501, 502, 512, 513; so does acquiescence, Id. 525, and negligence, Id. 556, 557. Hefner v. Vandolah, 57 Ill. 520; Cochran v. Harrow, 22 Id. 345.

Under the insecurity clause in the mortgage the mortgagee could not take possession until default, or he had shown by evidence that there was danger of loss, either by sale or levy. There is no evidence in the record that he even thought there was danger. Bailey v. Godfrey, 54 Ill. 507; Lewis v. D'Arcy, 71 Id. 648; Furlong v. Cox, 77 Id. 295.

The mortgage debt not being due, if he took possession he should have proceeded at once to advertise and sell. Lewis v. D'Arcy, 71 Ill. 648, is in point.

Appellants' title under the tax sale is good as against appellee's mortgage.

In the case of Forth v. Pursley, 82 Ill. 182, the facts are identical with the case at bar. Pursley sold an undivided half of a portable saw-mill in August, 1871, and in September mortgaged the other half, and in December the warrant came to the hands of the collector, who levied it and sold the property, and the tax sale is held to be valid.

Neither could Hurd, under his mortgage, claim any immunity, for no title passes under a mortgage until default, and no default had occurred. Simmons v. Jenkins, 76 Ill. 479.

A tax is not an ordinary debt. It takes precedence of all other demands, and is a charge upon the property. Without reference to the matter of ownership, the property itself may be seized and sold, though there may be prior liens or incumbrances upon it. Dunlap v. County of Gallatin, 15 Ill. 7.

At any rate, appellants should be reimbursed by appellee two-thirds the amount paid at the tax sale. Morgan v. Herrick, 21 Ill. 481; Illinois Land and Loan Co. v. Bonner, 75 Id. 315.

The judgment in the prior action of replevin is a bar to this suit to foreclose the mortgage. The title to the property having been put in issue and determined, the judgment in the former action is conclusive of that question. King et al. v. Ramsey, 13 Ill. 619. The finding in that case was: “After hearing the evidence and argument of counsel, the court finds the issues for the defendant.” What issues? That Gaar, Scott & Co. owned the engine. Not one issue, but all the issues in the case were found in their favor. The case of Underwood v. White, 45 Ill. 437, is in point.

What was judicially determined in this replevin suit, to which the complainant and the defendant, Curtin, were parties, was simply that Gaar, Scott & Co. owned the engine. This being so, is not the ownership of this property res adjudicata? The judgment of a court of competent jurisdiction is an estoppel as to all matters put in issue by the pleadings. Jackson v. Lodge, 36 Cal. 28.

When a judgment in one action is offered in evidence in a subsequent action, upon a different demand, it operates as an estoppel only upon the matter actually at issue and determined in the original action. Davis v. Brown, 94 U. S. 423; McDaniel v. Fox, 77 Ill. 343.

When the suit is against the agent it is binding on the principal. Phillips v. Moir, 69 Ill. 155. So, in the case at bar, the judgment in favor of Curtin, the agent, may be availed of by Gaar, Scott & Co., since the issue presented was their ownership of the property. Peters v. Nehf, 80 Ill. 25.

A party who recovers in replevin, etc., can not afterwards sue the same and another party in trespass for the same transaction, etc. Karr v. Barstow, 24 Ill. 580; Moore v. Rogers, 19 Id. 347.

Whatever the parties choose to present in issue by their pleadings and proof, whether of law or fact, ought to conclude them, if the pleas and proof present the merits of the controversy. Vanlandingham v. Ryan, 17 Ill. 25.

Everything within knowledge that complainant might have litigated in the first suit, is conclusive. Hamilton v. Quimby, 46 Ill. 90; Kreuchi v. Dehler, 50 Id. 176.

It not only embraces what has been actually determined in the former case, but also extends to any other matter which might have been raised and determined. Rogers v. Higgins, 57 Ill. 244 ; Lathrop v. Hayes, Id. 279.

Messrs. WALKER, and MURRAY & ANDREWS, for the appellee:

The validity of appellee's mortgage is not to be considered, because he had taken possession of the mortgaged property.

Even if appellee had notice of the attachment proceedings he could not have interfered. It was a levy upon a co-tenant's interest. Newhall v. Buckingham, 14 Ill. 405. Whether appellee had the right to take possession under his mortgage at the time he did, is of no concern except to the mortgagor. The appellants are in no position to make that objection. The case of Furlong v. Cox, 77 Ill. 295, cited by appellants, was between mortgagor and mortgagee.

Upon the facts in this case, it was not incumbent upon appellee to proceed to sell under his mortgage upon taking possession of the property. The case of Lewis v. D'Arcy, 71 Ill. 648, has no application to these facts. Appellants were not prejudiced by the omission to sell, and, moreover, a greater part of the time it was out of the power of appellee to sell. Appellants contend that the judgment in the prior action of replevin is a bar to this suit, and in support of the proposition cite King v. Ramsay, 13 Ill. 519, and Underwood v. White, 45 Id. 437, to show that the title to the property had been put in issue in the former suit. As we understand the law, in order to be a bar to the second action it is not only necessary that it is the same subject matter, but that it also be between the same parties. Miller v. McManis, 57 Ill. 126. Nor do the authorities above referred to militate against this doctrine. See also, Packet Company v. Sickles, 5 Wallace, 580.

Counsel cite Hamilton v. Quimby, 46 Ill. 90, and Kreuchi v. Dehler, 50 Id. 176, to show that everything that might have been litigated should have been litigated. This we concede, but claim that the bill in the case at bar and the proof admitting appellants to be owners of one-third of the engine, shows conclusively that it could not have been litigated.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This is an appeal from a decree of foreclosure of a chattel mortgage, rendered by the circuit court of Clinton county on the 17th day of November, 1876.

The bill charged in substance that on the 8th of July, 1874, William Bonner, Frank M. Layson and J. L. Bonner, being indebted to James W. McClelland in the sum of $260, executed to him their two several promissory notes, each for the sum of $130, payable in ninety days and six months respectively; that William Bonner and Layson, at the time of the making of the notes, were the owners of an undivided two-thirds of a portable engine and five-sixths of a separator threshing machine, with truck-wagon, belts, etc., and for the purpose of securing said notes executed and delivered to McClelland a chattel mortgage on the same; that on the 11th of the same month, three days afterwards, and before any part of the notes had been paid, the said McClelland, for value, indorsed and delivered the same to appellee, and at the same time transferred the mortgage by which the notes were secured; that Daniel Hartley was the owner of the other sixth of the threshing machine, truck-wagon, belts, etc.; that Gaar, Scott & Co. owned one-third of the portable engine, having derived their title through Hartley, and that they also claimed some interest in the two-thirds included in the mortgage, by purchase or otherwise, which was subordinate to the mortgage lien; that in pursuance of a stipulation in the mortgage, complainant, in October, 1874, reduced the mortgaged property to possession; that the makers of the notes were insolvent; that the engine was then in possession of W. H. Curtin as agent of Gaar, Scott & Co. and that he refused to surrender the possession thereof for the purpose of having the two-thirds interest sold under the mortgage; that Curtin was insolvent, irresponsible, and threatened to remove the engine from the State and sell the same and appropriate the proceeds thereof.

William Bonner, F. M. Layson, W. H. Curtin, Daniel Hartley and Gaar, Scott & Co. were made defendants, and the bill prayed for superior lien on the two-thirds of the engine and five-sixths of the thresher, etc.; also for an account and decree for amount found due, and in default of payment a sale of the mortgaged property. The bill was subsequently amended by striking out that portion which charged that Curtin was threatening to run the engine out of the State and dispose of the same, and inserting in its stead a charge to the effect that the engine had already been spirited away by Curtin...