Meixsell v. Williamson

• Decision Date: 30 April 1864
• Parties: GEORGE MEIXSELLv.CHAPMAN WILLIAMSON.
• Court: Illinois Supreme Court

35 Ill. 529

1864 WL 3085 (Ill.)

GEORGE MEIXSELL

v.CHAPMAN WILLIAMSON.

Supreme Court of Illinois.

April Term, 1864.

ERROR to Circuit Court of Tazewell County.

The case is sufficiently stated by the court.

B. S. Prettyman, for plaintiff in error.C. A. Roberts and R. W. Ireland, for defendant in error.

BREESE, J.

This was an action of replevin brought by plaintiff in error in the Tazewell circuit court, against the defendant in error, for certain goods and chattels in the declaration described.

The defendant pleaded non cepit and property in one Phares Meixsell, and that as sheriff of Tazewell county he seized the property by virtue of an execution issued on a judgment against Phares Meixsell.

The jury found a verdict of not guilty, on which the court entered judgment for costs against the plaintiff, on overruling a motion for a new trial. The case is brought here by writ of error, and the principal point made is on the instructions given by the court for the defendant.

The facts are briefly these: On the 27th of August, 1860, Phares Meixsell executed a mortgage to the plaintiff for the chattels in question, which was duly acknowledged and recorded on that day, and at the same time executed a note which the mortgage was given to secure. The mortgage contained the usual provision, that the property should remain with the mortgagor until the note matured. It appeared the note was made payable on the 27th of August, 1862. There is proof tending to show, when the note was signed, it was made payable on the day of its date, the figure “2” having the appearance of having been inserted after its execution, though the note is recited in the mortgage as payable on the 27th of August, 1862. The maker of the note testified that it bore the date it had when he executed it; but another witness (Corey) testified that the note was in his handwriting, except the signature, and that he put the date to it after it was executed. Phares Meixsell testified that the debt for which the note was given was bona fide and justly due.

On this state of facts, the defendant asked the court to instruct the jury that if they believed, from the evidence, that the mortgage was not bona fide, but was made to hinder and delay the creditors of said Meixsell, then the jury are to find the defendant not guilty.

The objections to this instruction are obvious. The intent of P. Meixsell to delay and hinder his creditors is not, under repeated decisions of this court, sufficient. This intent must be mutual; both the mortgagor and mortgagee must harbor the intent. Ewing v. Runkle, 20 Ill., 448; Myers v. Kinzie, 26 Id., 38. But if the instruction was right in this respect, still the jury should not have been instructed to find the defendant not guilty. There was a plea in of property in this mortgagor, and the verdict should have been for the defendant on that plea, if the mortgage was found to be fraudulent.

The next instruction the court gave for the defendant was this: “If the jury believe, from the evidence and statement of Mr. Corey, sworn as a witness in this cause, that the witness, Phares Meixsell, has sworn falsely as to the note having been dated at the time of execution, and from such evidence, that said Phares Meixsell is unworthy of belief, the jury may disregard his whole testimony.” Without noticing any other objection to this instruction, it is sufficient to say it is altogether too broad, as this court has often decided. The court should have added to the instruction, “unless corroborated,” for a witness may swear falsely in one particular, and yet be corroborated in all other particulars.

By the third instruction the jury were told, if they believed from the evidence of Corey, that Phares Meixsell has sworn falsely, and that he is unworthy of belief, and that there is no other evidence to show that the mortgage was bona fide, they will find for the defendant. This placed the case on very unfair grounds, for the jury, for aught that appears in the case, might as well believe that Corey stated what was not true, as that Phares Meixsell did, and if they placed more confidence in the statement of Corey, as to the time the note was dated, than they did in the statement of Meixsell, it did not follow the mortgage was not bona fide, for it recites the fact that the note was to be paid August 27, 1862. It was a very small circumstance by which to invalidate the mortgage. It was immaterial whether there was a note or not, if the property was to be held by the mortgage for two years.

The fourth instruction is unobjectionable, except in this, that admitting as it does that the production of the...