Thornton v. Davenport

• Decision Date: 31 December 1836
• Citation: 1 Scam. 296,2 Ill. 296,29 Am.Dec. 358,1836 WL 2350
• Parties: WILLIAM T. THORNTON, appellant,v.IRA DAVENPORT, and SMILY H. HENDERSON, appellees.
• Court: Illinois Supreme Court

1 Scam. 296

2 Ill. 296

1836 WL 2350 (Ill.)

29 Am.Dec. 358

WILLIAM T. THORNTON, appellant,

v.IRA DAVENPORT, and SMILY H. HENDERSON, appellees.

Supreme Court of Illinois.

December Term, 1836.

THIS cause was heard in the Circuit Court, before the Hon. Samuel D. Lockwood, at the May term, 1834, and judgment rendered that the property levied on was subject to the execution of the appellees, and that they recover their costs of suit; from which an appeal was taken by Thornton to this Court.

S. BREESE and WM. THOMAS, for the appellant, cited 3 Cranch, 73; R. L. 313-14; 1 Powell on Mort. 33, and notes.

J. LAMBORN, for the appellees.

WILSON, Chief Justice, delivered the opinion of the Court:

By agreement of the parties, this case was submitted to the Court upon a statement of facts, accompanied by a deed of mortgage made by Wilhite to Thornton. By this deed, Wilhite conveys to Thornton a variety of personal property, for two hundred dollars, with a condition that if Wilhite will pay to Thornton, at maturity, a note of two hundred dollars, with twelve per centum interest in one year, then the deed is to be void, otherwise absolute. It is also stipulated that Wilhite is to retain possession, and to have the use of the property until the day of payment. He is, also, at his own expense, to keep the property (part being live stock), and at the expiration of the year, if the debt be not paid, deliver it up to Thornton in good condition. The facts agreed upon are, that Wilhite was indebted to Thornton in the sum of two hundred dollars, the amount for which he executed his note, and that the mortgage was made to secure this debt. Davenport and Henderson were also creditors of Wilhite, and on the same day that the mortgage was made, obtained a judgment against him, and soon after, but before the expiration of the year, levied their execution on the mortgaged property in the possession of Wilhite.

Upon this statement of the case, the Court below decided the deed from Wilhite to Thornton to be void as to the creditors of Wilhite, and consequently subject to the execution of Davenport and Henderson. To support this position, it must be shown that the transaction between Wilhite and Thornton was fraudulent in fact, or that the conveyance is of such a character that the law will imply fraud, and that countervailing testimony, of fair intention, will not redeem it from this inference. That the sale from Wilhite to Thornton is not fraudulent in fact is apparent from a consideration of all the circumstances attending the transaction, as admitted by the parties. The sufficiency of the consideration upon which the mortgage was made is not questioned. It is admitted that Wilhite was indebted to Thornton in the sum of two hundred dollars, and that the property mentioned in the deed was mortgaged to secure this debt. The only circumstance of a questionable character is, the execution of the mortgage on the same day of the rendition of the judgment against him, in favor of Davenport and Henderson. But this fact unaccompanied by any other circumstance calculated to cast suspicion upon the transaction, is not of itself sufficient to attach to it the imputation of fraud, and thereby taint and render void the whole transaction. The transfer to Thornton, in its most unfavorable aspect, only amounts to a preference of one creditor to another; a privilege to which the debtor is always entitled. Even an insolvent debtor may prefer one creditor to another, and his motives for so doing, provided the preferred creditor has done nothing improper, can not be inquired into; nor is the time when this preference is indicated material, provided it is anterior to the lien set up to avoid it. ( Marbury v. Brooks, 7 Wheat. 556; 5 Peters' Cond. R. 345; Spring et al. v. S. C. Ins. Co., 8 Wheat. 268; 5 Peters' Cond. R. 434.)

There being no circumstances then attending the conveyance of the property from Wilhite to Thornton, from which fraud in fact can be inferred, it becomes necessary to inquire whether it is alike free from the inference of fraud in law. In the argument of the case, the statute of frauds and perjuries was adverted to; but as the deed under review was made upon valuable consideration, it does not come within the provisions of that statute. The case, therefore, depends entirely upon the principles of the common law; and it is to be regretted that the judicial determinations relative to the rules governing the transfer of personal property, which are of so much importance and such general application, have not been more stable...