Peters v. Smith

• Decision Date: 31 January 1867
• Citation: 1867 WL 4947,42 Ill. 417
• Parties: SILAS PETERSv.ANDREW J. SMITH.
• Court: Illinois Supreme Court

42 Ill. 417

1867 WL 4947 (Ill.)

SILAS PETERS

v.ANDREW J. SMITH.

Supreme Court of Illinois.

January Term, 1867.

APPEAL from the Circuit Court of Clark county; the Hon. HIRAM B. DECIUS, Judge, presiding.

This was an action of replevin, brought by Silas Peters, in the Clark Circuit Court, against Andrew J. Smith. The declaration proceeded for the recovery of a quantity of stock and farming implements. Defendant filed three pleas; first, non cepit; second, property in defendant; third, property in William S. Peters. Issues were formed, and, by agreement of the parties, the cause was tried by the court without the intervention of a jury.

On the trial, plaintiff proved that he purchased the property and placed it in the hands of his brother, William S. Peters, to be used by him in prosecuting the business of farming until it should be wanted by plaintiff. It also appears that William S. Peters had been engaged in mercantile business in Ohio, with one Young: that they had failed, and applied their property, so far as it would go, to the payment of their debts; that William S. Peters came to this State and commenced farming on a tract of land his father-in-law gave to his wife. And plaintiff purchased some five or six hundred dollars' worth of stock and farming implements and placed them in his hands to be used in the prosecution of the business until plaintiff required them to be returned. It also appears that William S. Peters sold a part of this property and supplied its place by the purchase of other property with the proceeds of such sales. And he testifies that he had authority to do so, conferred by his brother. The property seems to have been placed in his hands some time in the fall of 1859 or the first of the year 1860.

It appears, that, at the April Term, 1861, Stix, Krouse & Co., recovered a judgment against William S. Peters on a debt against him and Young, for $340.71. An execution issued upon this judgment, was levied upon this property in the latter part of November, 1863, by defendant, who was then the sheriff of Clark county, and to whom the execution was directed.

After hearing the evidence, the court found the issues for defendant. Whereupon plaintiffs entered a motion for a new trial, which the court overruled, and rendered a judgment for the return of the property; and plaintiff brings the case to this court by appeal, and asks a reversal of the judgment. Mr. JOHN SCHOLFIELD, for the appellant.

1. The court below decided this case upon the hypothesis that bare possession of personal property is sufficient to prove ownership, even against positive countervailing proof. The testimony of William S. Peters and Isaiah Stephens is positive, that the property in controversy belonged to the appellant and not to William S. Peters, and they are corroborated by Unzicker and Howe, and contradicted by nobody. It was proved that William S. Peters was in possession of the property, exercising acts of ownership over it; but it was also clearly proved that his possession was that of a bailee or agent, and not that of owner.

2. It is conceded that possession of personal property is prima facie evidence of ownership; but the possession may be accompanied with such circumstances as to rebut such presumption. Bergen v. Riggs, 34 Ill. 170. Even a loan of property by the purchaser to the seller, for a temporary purpose, or the employment of the seller to use the property in pursuit of the business of the purchaser, will not avoid the sale, and render the property liable to sale on execution issued after the purchase. Brown v. Riley, 22 Ill. 52. 3. The principle that “if a person sell personal property and does not deliver it to the vendee, there being no agreement in the bill of sale that the possession should remain with the vendor, the sale will be deemed fraudulent as to the creditors of the vendor,” ( Bay et al. v. Cook, 31 Ill. 336,) has no application to this case. There is no pretense in the evidence that the property in controversy was sold by William S. Peters to the appellant. The property was purchased of other parties, and the only question was, whether it was purchased for appellant or William S. Peters.

4. Fraud is never presumed; it must always be proved either by direct or circumstantial evidence. When there is no evidence of fraud, neither the court nor the jury have the right to infer or presume it. Wright v. Grover et al., 27 Ill. 430. The fact that William S. Peters used and managed the property as his own, and sometimes neglected to explain that he was merely an agent, but called the property, or spoke of it, as his own, is referable to and explained by the character of his agency as proved.

Messrs. DELANEY & ALLEN, for the appellee.

It is the policy of the law, when property is to be held, used and enjoyed by one, while it belongs to another, to require that the public shall be put upon notice of the fact. Hence, when property is under mortgage and the mortgagor retains possession, his right to do so must appear on record; so jealous is the law in regard to the rights of creditors, that the courts have so decided.

All conveyances of goods and chattels, where the possession is permitted to remain with the donor or vendor, are fraudulent per se, and void as to creditors, unless the retaining possession be consistent with the deed. Thornton v. Davenport, 1 Scam. 296.

A chattel mortgage of goods, where it is provided that the mortgagor shall retain possession and sell the goods, or dispose of them in any way, for an indefinite period of time, is fraudulent and void as against creditors. Davis v. Ransom, 18 Ill. 396; and, to same effect, Read v. Wilson, 22 Id. 377.

Suffering property to remain with the mortgagor after a default in payment, is a fraud per se, not subject to explanation. Reed v. Evans, 16 Ill. 594.

Possession should accompany the title to personal property, or a sale will be void per se, as to creditors without notice, and not open to explanation, unless the deed be properly acknowledged or it be expressly stipulated otherwise. Thompson v. Yeck, 21 Ill. 73.

So likewise the possession of property by a donor is fraudulent of itself as to creditors, unless there is a written stipulation for retaining such possession.

To pass the title to personal property, as regards third persons, there must be a change of possession, so that others may not be deceived and defrauded by the apparent ownership of one,...