Mumford v. Canty

• Decision Date: 31 January 1869
• Parties: JAMES E. MUMFORDv.TIMOTHY CANTY.
• Court: Illinois Supreme Court

50 Ill. 370

1869 WL 5237 (Ill.)

99 Am.Dec. 525

JAMES E. MUMFORD

v.TIMOTHY CANTY.

Supreme Court of Illinois.

January Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

The opinion states the case.

Mr. WILLIAM H. UNDERWOOD and Mr. L. H. HITE, for the appellant.

Mr. GEORGE W. DAVIS and Mr. G. KŒRNER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of replevin, brought by appellant, in the City Court of East St. Louis, on the 24th day of March, 1868, against appellee, to recover two mules, a two-horse wagon, and a set of double harness. After a trial in that court, the cause was removed to the Circuit Court of St. Clair county by appeal, and tried at the October term, 1868, and resulted in a judgment in favor of appellee, from which this appeal is prosecuted.

The bill of exceptions shows that it was tried upon the following agreed state of facts and evidence: “That John A. Knight was, on the 1st day of May, 1867, and continued to be until this suit, a resident and citizen of St. Louis, Missouri; that he duly executed the deed offered in evidence, to secure a bona fide debt, which was unpaid at the commencement of this suit; that said Knight became indebted to George Pointen, a resident of St. Clair county, Illinois, for coal, and Pointen sued out of the City Court of East St. Louis, (a court having full jurisdiction of the case,) an attachment against the goods of said Knight, directed to said Canty, who levied on the same, and took from the possession of Knight, said property; the same being at the time in East St. Louis.

That said Knight kept said property in St. Louis, Missouri, and at the time of the attachment it was used temporarily to haul coal from the city of East St. Louis, Illinois, and that Pointen gave Knight credit on account of his supposed ownership of this property.

It is also stipulated that Canty was, at the time of the seizure, and ever since, marshal of the city of East St. Louis, and the property attached is part of the property mortgaged; that Knight, the mortgagor, was in possession of the mortgaged property until said attachment, and that said mortgage was made, acknowledged and recorded, according to the laws of the State of Missouri; and that both parties may refer to the statutes of Missouri on the hearing of this case, as was done in the court below, where all the above facts were admitted.”

The deed referred to, is a deed of trust, made by Knight to Mumford, the plaintiff, for the benefit of Huse, Loomis & Co., all residents of the city and county of St. Louis, and State of Missouri. It is dated May 1st, 1867; is given to secure said firm in a note of that date, for the payment of $2,908.88, and six months after date, with interest at ten per cent. per annum, made by said Knight to said firm. Among other property described in the deed, is one span of mules, and one two-horse wagon, &c. The property is conveyed in trust to Mumford, to be released upon payment of notes when due; and upon failure to do so, said trustee to sell said property in St. Louis, at public sale, for cash, &c., after notice, &c.; proceeds to be applied to payment of costs and expenses of the trust, and payment of said note, and balance to Knight or to his heirs or assigns. The deed was acknowledged on the 13th day of May, 1867, before a notary public, and filed for record in the proper office in St. Louis county, on the day following.

The chattel mortgage law of Missouri is the same as the first section of our statute. Sec. 8, Revised Laws 1845, page 527, is this:

“No mortgage or deed of trust of personal property hereafter made, shall be valid against any other person than the parties thereto, unless possession of the mortgaged property shall be delivered to and retained by the mortgagee or trustee, or cestui que trust; or unless the mortgage or deed of trust be acknowledged or proven, and recorded in the county in which the mortgagor or grantor resides, in such manner as conveyances of land are by law directed to be acknowledged or proven and recorded.”

There is, however, this difference in the two statutes, that while there is but slight difference in the phraseology between the 1st section of our statute and the 8th section of the Missouri law, the 3d section of our act declares that possession of the mortgaged property may remain with the mortgagor, if it is so provided in the conveyance. Under the Missouri statute, the courts of that State have held, where possession remains with the mortgagor, that it is not fraudulent per se, as against creditors, but that it might be shown to be bona fide. Shepherd v. Trigg, 7 Mo. 151. And in the case of Bevans v. Bolton, 31 Mo. 437, it was held that the removal of the mortgagor with the property to another county in the State from that in which the mortgage was executed, does not subject such property to levy and sale on execution against the mortgagor, or affect the title of the mortgagee. That court holds that after the maturity of the debt, the mortgagee has the legal title, and may sue for and recover it as his own. Robinson v. Campbell, 8 Mo. 365. This court holds the same rule. But that court holds that possession by the mortgagor, for a length of time, after the maturity of the debt, may be shown to have been fair, as against creditors and purchasers, and the mortgagor may hold the property. Shepherd v. Trigg, supra.

The 7th section of our chattel mortgage law extends the operation of that statute to deeds of trust, and such other conveyances of personal property as have the effect of a...