Huschle v. Morris

• Decision Date: 21 January 1890
• Citation: 131 Ill. 587,23 N.E. 643
• Parties: HUSCHLE v. MORRIS.
• Court: Illinois Supreme Court

131 Ill. 587

23 N.E. 643

HUSCHLE

v.MORRIS.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Appeal from appellate court, fourth district.

Wm. P. Launtz, for appellant.

Alex. Flannigen, for appellee.

BAILEY, J.

This was an action of replevin, brought by Wendele Huschle against Harry Morris, to recover possession of the following goods and chattels, to-wit: All the goods and groceries, shelving, counters, and other property, of every description, then in the building occupied and used by George H. Recker as a grocery store, in the city of East St. Louis. The declaration was in the cepit and detinet, and all subsequent formal pleadings were waived by the parties; it being stipulated that either party might introduce at the trial any evidence which would be competent under proper pleadings. The defense actually interposed was that, at the time said goods and chattels were taken by the defendant, they were the property of said Recker, and that the defendant, then and there being a constable of the county of St. Clair, seized and was holding said goods and chattels under and by virtue of a writ of attachment against the goods and chattels of said Recker, duly issued to the defendant by a justice of the peace of said county. At the trial the court, at the close of the evidence, instructed the jury to find the property in controversy to have been the property of said Recker at the time of the levy of said writ of attachment, and to find the issues for the defendant, which was accordingly done; and the court, after denying the plaintiff's motion for a new trial, gave judgment for the defendant. Said judgment has been affirmed by the appellate court on appeal, and said judgment of affirmance is now brought here for review.

On the 8th day of August, 1887, and for some time prior thereto, George H. Recker was the owner of the stock of goods in question, and was keeping a general retail grocery and provision store in East St. Louis. He seems at that time to have been indebted to the plaintiff, who is his father-in-law, in the sum of $1,000 or over, about $700 of said indebtedness having arisen from the plaintiff's having given his individual promissory note for that sum in payment of said stock of goods at the time of the original purchase thereof by Recker, about a year before, and the residue of said indebtedness being for divers advances subsequently made by the plaintiff to Recker in money and property. On or shortly before said 8th day of August, 1887, the plaintiff applied to said Recker for security for said indebtedness, and after some negotiation it was agreed between them that Recker should execute to the plaintiff his promissory note for $1,000, due two years after date, and secure said note by a chattel mortgage on said stock of goods and certain other property of said Recker. Said papers were executed, the mortgage being duly acknowledged and recorded. It was provided in the mortgage that the mortgagor should retain possession of said stock of goods, and he did in fact retain possession thereof, and continued, with the approval and permission of the mortgagee, to sell from said stock of goods at retail, in the ordinary course of business, precisely as he had formerly done. On the 22d day of August, 1887, various creditors of said Recker, and among them the firm of Fink & Nasse, sued out attachments before a justice of the peace, against the goods and chattels of said Recker; and the attachment in favor of Fink & Nasse having been placed in the hands of the defendant in this suit to execute, he being then a constable of said county, said writ was, by the defendant, levied on all the goods and chattels covered by the mortgage. Judgment was afterwards rendered in the attachment suit for the amount of Recker's indebtedness to the plaintiffs therein, and a special execution was awarded for the sale of the property attached. At the trial the plaintiffs in the attachment suits released from their levies all of the mortgaged property, except the stock of goods and merchandise in said store, and the question now presented is as to the ownership of said stock of goods at the time the same was levied upon by virtue of said writs of attachment.

There can be no doubt that, as against the rights of the attaching creditors, the chattel mortgage must be held to be fraudulent and void. The evidence shows, and that, too, without any material controversy, that, by the understanding of the parties at the time the mortgage was executed, the stock of goods was left in the hands of the mortgagor, to be sold by him at retail, in the usual course of his business as a retail merchant. True, no provision as to the sale of said property was inserted in the mortgage, but that is unimportant, so long as the real intention of the parties was that such sales should be made. The rule is well settled that a mortgage on a stock of goods which...