Hanford v. Obrecht
| Decision Date | 30 September 1868 |
| Parties | TALMON F. HANFORDv.JACOB OBRECHT. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Kankakee county; the Hon. CHARLES H. WOOD, Judge, presiding.
The opinion fully states the case.
Mr. THOMAS P. BONFIELD, for the appellant.
Mr. STEPHEN R. MOORE, for the appellee.
This was an action of replevin, brought to the Kankakee Circuit Court, by Talmon F. Hanford, against Jacob Obrecht, the sheriff of that county, who had levied an execution in his hands, in favor of Otto Immelt, against Talmon Hanford, on the property in question.
The property consisted of household furniture chiefly, and it appeared that Talmon Hanford was the father of Stephen F. Hanford and also of the plaintiff, and that he did, on the 14th of April, 1862, execute a mortgage to Stephen of the property, conditioned, if he should pay Stephen five hundred and fifty dollars, with ten per cent. interest, on the 14th of April, 1864, being the amount of a promissory note of that date, then the mortgage was to be void. In default thereof, Stephen might seize the property, and sell it at public or private sale, to the highest bidder for cash, after giving ten days' notice of the time and place of the sale, together with a description of the property to be sold, in at least five of the most public places in the vicinity of the place where the sale should be had, to satisfy the debt.
On the 25th of April, 1864, Stephen executed a bill of sale of this property to the plaintiff, his brother, which recites the making and the terms of the mortgage from his father, Talmon, and then states that on the 14th day of April, 1864, the money due by the mortgage being unpaid, he took possession of the property and placed the same in the hands of a custodian until the time of sale; and for ten days previous to the sale, he had posted five advertisements of the sale in the most public places in the vicinity of Talmon Hanford, in the town of Manteno, in Kankakee county, that the property would be sold to the highest bidder, at the residence of Talmon Hanford, in that town, on the 24th day of April, 1864, at ten o'clock in the morning, for cash, at public or private sale, and that at such time and place, he sold the property to the plaintiff, at private sale, for five hundred and forty dollars.
This was all the evidence in chief on the part of the plaintiff. He gave some rebutting testimony of no importance.
The defendant moved to exclude the mortgage and bill of sale--the mortgage, because there was no evidence of a sale of the property under the mortgage--the bill of sale, because it had no revenue stamp, and because it was not evidence of a sale, and because it was not accompanied by evidence that the conditions of sale, as provided in the mortgage, had been complied with.
The motion was denied and exception taken.
The objection to the mortgage was not tenable on the reason given. The mortgage may be valid, and yet the proceedings under it be irregular and invalid. These do not affect the validity of the mortgage. The objection to the bill of sale for the reason of the absence of a revenue stamp upon it, is without foundation, as this court decided in the case of Craig v. Dimock, 47 Ill. 308. The other objection, that the bill of sale was not evidence of a sale, it being unaccompanied by evidence that the conditions for a sale, as provided in the mortgage, had been complied with, can not avail, as it was admitted in evidence without any objection. The objection comes too late. It has been the practice, in some courts, to exclude evidence from the jury which has been admitted without objection, but we are not inclined to favor it. The true practice is, when evidence thought to be improper is offered, to object to it, stating the objections, and if not sustained, then to except to the opinion of the court admitting it.
It was proved on the part of the defendant, by his own testimony, that he had no interest in the case; was sheriff merely, with an execution against Talmon Hanford, from the circuit court of Kankakee county, dated April 21, 1864, reciting, that it issued on a judgment rendered by that court at January term, 1862, and a levy endorsed June 8, 1864. The property was in Talmon Hanford's possession at the time of the levy. He further stated, against the objection of the plaintiff, that this bill of sale was not produced in evidence on the former trial.
The absence of plaintiff was proved by a witness, who stated he went away the fall before the trial. Witness knew of the chattel mortgage...
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