Simmons v. Jenkins

Citation76 Ill. 479,1875 WL 8227
PartiesPILCHER G. W. SIMMONSv.CHARLES W. JENKINS, Admr.
Decision Date31 January 1875
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Montgomery county; the Hon. HORATIO M. VANDEVEER, Judge, presiding.

Messrs. MCWILLIAMS & TALLEY, for the appellant.

Mr. A. N. KINGSBURY, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was replevin, in the Montgomery circuit court, by Wood, as mortgagee of Marshall, against Simmons, who, as constable, and having an execution from a justice's court, on a judgment against Marshall, levied upon and took the goods out of Marshall's possession, before default under the mortgage; whereupon Wood sued out a writ of replevin in the cepit against Simmons, by virtue of which the goods levied upon were replevied. The declaration contains but one count, and that is for the wrongful taking and detention of the goods.

The defendant filed three pleas: (1.) That he does not wrongfully detain the goods, etc., concluding to the country, etc. (2.) Property in Marshall, concluding with a verification. (3.) Justification under the execution; also concluding with a verification. No replication was filed.

The jury returned the following verdict: We, the jury, find for the plaintiff all the goods described in the affidavit, with the exception of the stoneware and one barrel of vinegar--that subject to execution.”

The defendant moved the court to set aside the verdict for uncertainty and want of form, and for a new trial. The court, overruling the motion, gave judgment in the following form: “It is therefore considered and ordered by the court that the said plaintiff recover of and from the defendant all the property described in the plaintiff's affidavit, except the stoneware and one barrel of vinegar, which is subject to execution, and a writ of retorno awarded to defendant.” From this judgment defendant appealed and assigns various errors.

It appears that, at the time of the levy, Marshall was in possession under a clause in the mortgage giving him the right to retain the possession and use of the chattels until the day of payment of his debt to Wood, which had not then arrived. He therefore had such a legal interest in the property as might be seized, and, but for the insecurity clause in the mortgage, sold on execution against him. Prior v. White, 12 Ill. 261; Mattison v. Bancus, 1 Comstock, 295, and cases there cited.

It is well settled that, upon failure of mortgagor to perform the condition of the mortgage, the legal title to the chattel mortgaged becomes vested absolutely in the mortgagee. Brown v. Bement, 8 Johns. R. 96; Ackley v. Finch, 7 Cow. 290; Langdon v. Buel, 9 Wend. 80; Patchin v. Pierce, 12 Wend. 61.

If the chattels mortgaged be levied upon in the hands of the mortgagor under a right given to retain the possession and use until the debt secured matured, and such levy be before default, then, whether the mortgage contain the insecurity clause or not, the officer is not a trespasser in making the levy, and neither the action of trespass nor replevin in the cepit will lie in favor of the mortgagee for such act. But where the mortgage contains no insecurity clause, and the debt matures before sale under the writ, the mortgagee may demand the property of the officer, and, on refusal, maintain trover or replevin in the detinet. So, where the mortgage contains the insecurity clause, the mortgagee may, immediately upon the taking by the officer, exercise the right given by that clause, and demand possession of the property. If refused, he may maintain trover or replevin in the detinet for the wrongful detention. Before the exercise of such right or default, the general property is not in the mortgagee so as to draw to it a possession in law. The general rule laid down in the books is as follows: “The person in whom the general property in a personal chattel is, may maintain an action of trespass for the taking of the chattel by a stranger; for a general property always draws to it a possession in law, which is, in the case of a personal chattel, by reason of the transitoriness of its nature, sufficient to found this action upon.” Barrett v. Warren, 3 Hill, 353.

To sustain the action of replevin for wrongfully taking and detaining a personal chattel, it is necessary to show that the defendant wrongfully took it from the actual or constructive possession of the plaintiff. This is elementary law. Hence the...

To continue reading

Request your trial
35 cases
  • Boswell v. First National Bank of Laramie
    • United States
    • United States State Supreme Court of Wyoming
    • December 7, 1907
    ......477; Caldwell. v. Pray, 41 Mich. 307; 1 Cobbey on Ch. Mort., 453, 482,. 737; Murchalter v. Mitchell, 27 S. C., 240;. Simmons v. Jenkins, 76 Ill. 479; Keller v. Robinson, 153 Ill. 458; Kellogg v. Olsen, 34. Minn. 103; Black v. Pidgeon, 70 N.J.L. 802;. Quinn v. ......
  • Hasbrouck v. LaFebre
    • United States
    • United States State Supreme Court of Wyoming
    • October 13, 1915
    ...... 920; Ryan v. Rogers, 14 Idaho 309, 94 P. 427.). Illinois; ( Huschle v. Morris, 131 Ill. 587, 23 N.E. 643; Simmons v. Jenkins, 76 Ill. 479; Barrett v. Fergus, 51 Ill. 352, 99 A. D. 547; Greenebaum v. Wheeler, 90 Ill. 296.) Kansas; ( Standard Imp. Co. v. ......
  • Dougal v. Eby
    • United States
    • United States State Supreme Court of Idaho
    • February 7, 1906
    ...... purchased with other goods purchased later, which is another. and stronger badge of fraud. (7 Cyc. 36; Burns v. Campbell, 71 Ala. 271; Simmons v. Jenkins, 76. Ill. 479; Merchants' Nat. Bank v. McLaughlin, 2. F. 128, 1 McCrary, 258, and numerous cases cited in 7 Cyc. 36, from ......
  • Linington v. Strong
    • United States
    • United States Appellate Court of Illinois
    • October 31, 1880
    ......473; Hazen v. Pierson, 83 Ill. 241.        A material fact alleged on one side and not denied on the other, is admitted: Simmons v. Jenkins, 76 Ill. 479; The People v. Gray, 72 Ill. 343; Dana v. Bryant, 1 Gilm. 104.        Plea of non est factum only puts in issue the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT