Hogan v. Akin

• Decision Date: 19 October 1899
• Citation: 55 N.E. 137,181 Ill. 448
• Parties: HOGAN et al. v. AKIN.
• Court: Illinois Supreme Court

181 Ill. 448

55 N.E. 137

HOGAN et al.

v.AKIN.

Supreme Court of Illinois.

Oct. 19, 1899.

Appeal from appellate court, Fourth district.

Action by Walter M. Akin against Richard Thompson (G. W. Hogan and others, administrators, substituted) and W. B. Martin. From a judgment for plaintiff, affirmed by the appellate court (81 Ill. App. 62), defendants appeal. Reversed.

C. H. Layman and W. S. Cantrell, for appellants.

Hart & Spiller, for appellee.

CARTWRIGHT, C. J.

The circuit court of Franklin county entered judgment on the verdict of a jury in favor of Walter M. Akin, appellee, against Richard Thompson and W. B. Martin, in an action of replevin for the possession of the property, together with $85 damages for its detention, and costs of suit. The defendant Thompson removed the record by appeal to the appellate court for the Fourth district, but died while the appeal was pending, and appellants, as administrators of his estate, were substituted for him. The appellate court affirmed the judgment of the trial court, and granted a certificate of importance, in pursuance of which the case is brought to this court.

On January 30, 1897, Akin executed to Thompson his note for $110, due in five months, and secured the same by a chattel mortgage on the property in controversy. The mortgage provided that the mortgagor might retain possession of the property until default in payment, but contained the usual insecurity clause, stipulating that if the mortgagee should, at any time before the note became due, feel unsafe or insecure, he should have the right to take possession of the property, and advertise and sell it to pay the debt. In the latter part of April, 1897, Thompson, by virtue of that clause, authorized his co-defendant, Martin, a constable, to take possession of the property as his agent, and advertise and sell it, for the purpose of collecting the debt. Martin took the property by virtue of the mortgage and his agency, and this replevin suit followed. The defense made at the trial was that the possession was rightfully taken in pursuance of the provisions of the chattel mortgage, in good faith, for the sole purpose of collecting the debt. At the time the note was made and delivered, it did not recite upon its face that it was secured by chattel mortgage. The note and mortgage were written by a justice of the peace, and the note was afterwards sent to him, and he indorsed upon it, ‘This note is secured by chattel mortgage.’ The trial court, by sustaining demurrers to pleas, adopted the theory that the mortgage was void between the parties to it, and that the defendants had no rights under it, on account of the failure to make such recital. The court, also, by the third instruction, took the same ground, and directed the jury to find for the plaintiff, unless they believed from the evidence that the words in question, stating that the note was secured by chattel mortgage, were on the face of the note at the time the mortgage was executed, or that plaintiff consented to and ratified the act of putting said words on said note. To determine whether the court was right on that question involves the construction of section 1 of an act entitled ‘An act to regulate the assignment of notes secured by chattel mortgages, and to regulate the sale of property under the power of sale contained in chattel mortgages,’ in force July 1, 1895. Laws 1895, p. 260. The second section of that act regulates the sale of property under the power of sale contained in chattel mortgages, and covering that branch of the title. Section 1 is the only portion of the act which relates in any way to the assignment of notes so secured, or which is claimed to have any bearing on the subject under consideration. That section is as follows: ‘Be it enacted by the people of the state of Illinois, represented in the general assembly, that all notes secured by chattel mortgages shall state upon their face that they are so secured, and when assigned by the payee therein named, shall be subject to all defenses existing between the payee and the payor of said notes, the same as if said notes were held by the payee therein named; and any chattel mortgage securing notes which do not state upon their face the fact of such security shall be absolutely void.’

It is argued in support of the holdings of the trial and appellate courts that here is a plain and unambiguous provision of the statute that a chattel mortgage like this one is absolutely void. It is true, we cannot disregard a provision of that kind appearing to be within the intention of the lawmakers; but the purpose of construction is to find and give effect to such intention, and a thing which is within the letter is not within the statute, unless within such intention. Perry Co. v. Jefferson Co., 94 Ill. 214. In seeking for such intention, we are to consider, not only the language used by the legislature, but also the evil to be remedied and the object to be attained. Soby v. People, 134 Ill. 66, 25 N. E. 109;Bobel v. People, 173 Ill. 19, 50 N. E. 322. Considering only the language of the enactment, we do not regard it as clear that the legislative intention was to make chattel mortgages void between the parties for a failure to give notice upon the note that it is secured by mortgage. The provision may as readily he construed to apply only when the condition exists which precedes such provision, and such notes have been assigned by the payee therein named. The section requires notice upon the face of the notes, and...