Gundy v. Biteler
| Decision Date | 31 May 1880 |
| Citation | 6 Bradw. 510,6 Ill.App. 510 |
| Parties | JOSEPH C. GUNDYv.CORNELIUS BITELER. |
| Court | United States Appellate Court of Illinois |
ERROR to the County Court of Vermillion county; the Hon. R. W. HANFORD, Judge, presiding. Opinion filed June 29, 1880.
Mr. G. W. SALMANS and Mr. J. W. JONES, for plaintiff in error; that the issue of domestic animals mortgaged, are subject to the mortgage, cited 2 Hilliard on Mortgages, 391; Forman v. Proctor, 9 B. Mon. 124.
A party purchasing mortgaged property before maturity of the mortgage, cannot complain of laches of the mortgagee in taking possession: Arnold v. Stock, 81 Ill. 407.
Mr. CHARLES A. ALLEN and Mr. F. BOOKWALTER, for defendant in error; that the property was insufficiently described, cited Hutton v. Arnett, 51 Ill. 198.
The mortgagee should have taken possession of the property: Frank v. Miner, 50 Ill. 444.
Chattels must have an existence at the time of the execution of the mortgage: Titus v. Mabee, 25 Ill. 257.
Permission to the mortgagor to trade the property, avoids the mortgage: Barnet v. Fergus, 51 Ill. 352; Goodheart v. Johnson, 88 Ill. 58.
Plaintiff brought this suit in replevin before a justice of the peace against defendant to recover the possession of one brown colt. After a trial of the cause before the justice, it was appealed to the county court, where it was tried before a jury resulting in a verdict in favor of defendant, and judgment was rendered against plaintiff for costs, from which he prosecutes a writ of error to this court.
One William H. Salmans, executed to plaintiff in error a chattel mortgage on the second day of March, 1877, on one sorrel mare, to secure a note of that date, payable on the first day of January, 1878, containing the usual provision that until default in payment, it should be lawful for the mortgagor to retain the possession of the property mortgaged.
In May following, the colt in controversy was foaled by the mare described in the mortgage, and soon after sold by the mortgagor to James Caldwell, who sold it to defendant in error in September, 1877.
At the maturity of the note, plaintiff in error took possession of the property (except the colt) under his mortgage and sold the same for thirty dollars, and afterwards replevied this colt from defendant in error, and claims it by virtue of his mortgage.
When live stock is mortgaged, its natural increase becomes subject to the mortgage. Hilliard on Mortgages, 420. This was the rule of the civil law, and by universal acknowledgment has become a part of the law of England and the United States. Herman on Chattel Mortgages, 86.
This mortgage was executed, acknowledged and recorded,...
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In re Deeb, Bankruptcy No. 83-04327
...11 How. U.S. 375, 13 L.Ed. 736; Evans v. Merriken, 8 Gill. & J. 39; Leavitt v. Jones, 54 Vt., 423; Gundy v. Biteler, 6 Bradw. (Ill.) 510, 6 Ill.App. 510, Jones Chat. Morg. §§ 149, The attempt has been made to draw a distinction, when, during the time the property remained with the mortgagor......
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Meyer v. Cook
...v. Proctor, 9 B. Mon. 124; Fowler v. Merrill, 11 How. 375; Evans v. Merriken, 8 Gill & J. 39; Leavitt v. Jones, 54 Vt. 423; Gundy v. Biteler, 6 Bradw. 510; Jones, Chat. Mortg. §§ 149, 150. The attempt has been made draw a distinction when, during the time the property remained with the mort......