Mcconnell v. Scott

• Decision Date: 31 January 1873
• Citation: 1873 WL 8194,67 Ill. 274
• Parties: ANDREW B. MCCONNELLv.WILLIAM T. SCOTT.
• Court: Illinois Supreme Court

67 Ill. 274

1873 WL 8194 (Ill.)

ANDREW B. MCCONNELL

v.WILLIAM T. SCOTT.

Supreme Court of Illinois.

January Term, 1873.

WRIT OF ERROR to the Circuit Court of Sangamon county; the Hon. JOHN A. MCCLERNAND, Judge, presiding.

Messrs. CULLOM & ZANE, for the plaintiff in error.

Messrs. ROBINSON, KNAPP & SHUTT, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of replevin, brought by defendant in error, in the Sangamon circuit court, against plaintiff in error, to recover a lot of stock and other personal property which plaintiff in error had levied upon as the property of N. J. Shropshire. It is agreed that Shropshire occupied a farm of defendant in error, situated in Sangamon county, and was justly indebted for rent already due, and for rent to become due; and on the 5th day of January, 1871, he executed to defendant in error a chattel mortgage on a large quantity of personal property, to secure the payment of rent due for the use of the farm of defendant in error, the time for the payment of which was extended until the 4th of October, 1874, and for rent that would accrue during that year, and which was payable on the 1st day of January, 1872.

The mortgage states that the amount of the rents then due had not been adjusted, nor was the amount of rent falling due on the 1st of January, 1872, named in the mortgage. The condition of the mortgage was for the payment of the rent in arrear by the fourth day of the next October, and for the rent that was to accrue, by the first of the next January, and all interest that should accrue. The mortgage provided for the retention of the property by the mortgagor until default should be made, and if the money should not be paid at the times mentioned, the mortgagor was required to surrender the property to the mortgagee, and on failure to pay the money, etc., the mortgagee was authorized to take possession, and, after giving five days' notice, to sell the same, pay the rents, and pay to the mortgagor any surplus that might remain. The mortgage was properly executed, acknowledged and recorded.

The money already due for rents not having been paid on the 4th of October, the date to which the payment had been extended, on the 5th, defendant took possession and gave notice that the property would be sold, at which time it was offered and bid in by defendant in error as the highest bidder. The amount of rent in arrear was ascertained, before the property was seized by the mortgagee, to be $2715. The proceeds of the sale did not satisfy the rent that was then due to defendant in error.

On the 23d of September, 1871, and whilst the property was still in possession of the mortgagor, an execution came to the hands of plaintiff in error against the goods and chattels of Shropshire, and on the 6th day of November, 1871, the same was levied on the property named in the mortgage, and purchased at the sale by defendant in error. He thereupon replevied the same, and on a trial the circuit court found the issues in his favor and rendered judgment against plaintiff in error for the costs of the suit, to reverse which this writ of error is brought.

It is first urged that the mortgage was void, because the sum to secure which it was given was not specified therein, but, on the contrary, was stated to be unadjusted.

In the case of Speer v. Skinner, 35 Ill. 282, after reviewing the authorities, it was...