Wylder v. Crane

• Decision Date: 31 January 1870
• Citation: 53 Ill. 490,1870 WL 6245
• Parties: HENRY H. WYLDERv.LEVI CRANE et al.
• Court: Illinois Supreme Court

53 Ill. 490

1870 WL 6245 (Ill.)

HENRY H. WYLDER

v.LEVI CRANE et al.

Supreme Court of Illinois.

January Term, 1870.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Alton City Court, the Hon. HENRY S. BAKER, Judge, presiding.

The opinion states the case.

Mr. SETH T. SAWYER, for the plaintiff in error.

Messrs. WARREN & POGUE, for the defendants in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears from the record in this case, that one Levi Crane was indebted to one Peter B. Hudson, and on the thirty-first day of December, 1859, the former executed to the latter a chattel mortgage on a portable saw and grist mill and engine, with a lot of other personal property. It was duly recorded on the same day. Afterwards, on the sixteenth day of February, 1860, Crane, being indebted to complainant, executed to him a mortgage on the same property. The note due to Hudson not having been paid at maturity, he, on the day it fell due, took possession of the property mentioned in the mortgage, and after advertising it, sold the same in pursuance to the power contained in the mortgage, and one Meade Vaughn became the purchaser. Vaughn being the owner, on the first of April, 1862, sold the same to one Pliney G. Hays for $300, who took and remained in possession until the twentieth of the following October, when he sold the engine and saw mill and appurtenances to defendant, Massey, for $600. He denies all knowledge of complainant's claim. Massey took possession in December following his purchase, he having purchased previously to that time the grist mill of Vaughn, and had remained in possession until this bill was filed. Massey denies that he ever claimed any portion of the remainder of the property, and states in his answer that a portion had died and that the balance had been taken out of his possession.

This bill was filed to subject the property in Massey's possession, and which he purchased of Vaughn and Hays, to sale for the satisfaction of complainant's mortgage, and for an account of the rents and profits arising from the use of the property by defendant, Massey. On the hearing in the court below, the bill was dismissed at complainant's costs.

It is first urged, that the court below erred in permitting defendant, Massey, to amend his answer. Such amendments have ever been a matter of discretion in the chancellor, and will always be allowed in the promotion of justice, and where injury can not result to the opposite party; and in cases where injury might be the result unless time is given to the opposite party to meet the change in the case produced by the amendment, the court should always refuse leave to amend or give reasonable time for the other party to meet the amendment. In this case there was no such change in the pleadings produced by the amendment, as could have worked the least injury to plaintiff in error. There is no force in this objection.

It is next urged, that the court below erred in dismissing complainant's bill, and in refusing the relief sought. Defendant in error, Massey, sets up a paramount title in himself, superior to the claim of plaintiff in error, and it is insisted that it devolved on him to prove it, and that he has failed. He has shown that Crane, the common source of title, gave to Hudson a prior mortgage, and that it was foreclosed under the power contained in the mortgage, and has proved that he derives title from the purchaser at that sale, of a part of the property, and from a grantee of the purchaser at that sale, of the remainder; and the evidence fails to show that his purchase was made in fraud of the rights of plaintiff in error. Hudson's mortgage, being the elder, and not having been shown to have been fraudulent, when it was foreclosed, barred and...