Mcdowell v. Stewart
| Decision Date | 30 September 1876 |
| Citation | 83 Ill. 538,1876 WL 10395 |
| Parties | WOODFORD G. MCDOWELL et al.v.SAMUEL STEWART. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Livingston county; the Hon. NATHANIEL J. PILLSBURY, Judge, presiding.
Mr. A. E. HARDING, and Mr. H. H. MCDOWELL, for the appellants.
Mr. D. L. MURDOCK, Mr. C. C. STRAWN, and Mr. S. S. LAWRENCE, for the appellee.
Appellants, being sued on a bond which they had executed in a certain action of replevin, set up, as defense, that the suit was not tried upon its merits, and that the plaintiff therein was entitled to the possession of the property by virtue of a chattel mortgage executed by one Robert J. Johnson. The defendant in the replevin suit was the sheriff of the county, and he claimed the property by virtue of three writs of fi. fa. against Robert J. Johnson.
The points made on the ruling of the court below are all disposed of by the determination of the question,--was the chattel mortgage from Johnson to the plaintiff in the replevin suit acknowledged in conformity with the statute?
The instrument introduced in evidence as such mortgage purported to have been so acknowledged, but the evidence successfully contradicts it
Johnson and the justice of the peace both reside in Avoca township, and the mortgagee resides in Indian Grove township, in which is the village of Fairbury. On the day the instrument purports to have been acknowledged, Johnson and the justice of the peace were in Fairbury, and Johnson requested the justice to go to the office of the mortgagee, which he did. When he arrived at the office, Johnson being absent, the mortgagee told him he had a mortgage, of which he wished him to take the acknowledgment, and he thereupon added his certificate of acknowledgment. Johnson, the justice of the peace and the mortgagee, all concur in saying that Johnson was not present when the certificate of acknowledgment was affixed, and that the fifty head of hogs were not then included in the description of the property in the mortgage, but were added, afterwards, by the mortgagee,--as he says, with the consent of Johnson. Both the justice and Johnson positively swear that Johnson did not at any other time acknowledge the execution of the mortgage, and in this no one contradicts them. They also swear that Johnson's name was not to the instrument when the justice affixed his certificate, but the mortgagee swears that it...
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