Gen. No. 10,933 | Ill. App. Ct. | Feb 13, 1904
delivered the opinion of the court.
That appellant came into lawful possession of the piano is not disputed. Appellee was in default and he had a right, as agent for the mortgagee, to take the piano even without the order. Upon appellee’s failure to pay at maturity, the legal title' to the piano became absolutely vested in Myers, the mortgagee. Simmons v. Jenkins, 76 Ill. 479" date_filed="1875-01-15" court="Ill." case_name="Simmons v. Jenkins">76 Ill. 479; Whittemore v. Fisher, 132 Ill. 243" date_filed="1890-03-31" court="Ill." case_name="Whittemore v. Fisher">132 Ill. 243. The legal title not being in appellee, she cannot maintain trover or any action at law for the possession or value of the property. Hor did the unaccepted tender operate to revest the title in her. Blain v. Foster, 33 Ill. App. 298. Her interest was equitable only, and her sole -remedy was by a bill to redeem. Frankenthal v. Meyer, 55 Ill. App. 405" date_filed="1894-12-06" court="Ill. App. Ct." case_name="Frankenthal v. Meyer">55 Ill. App. 405.
That the law is as above stated, is tacitly conceded by her counsel; but they claim that the mortgage was converted into a pledge by the taking of the order, which they say was the making of “a new arrangement,” and that therefore appellee had a right to bring her action at law. Without passing upon this contention, it is sufficient to say that the mortgage was not superseded or extinguished by the order and the turning over of the piano to appellant. On the contrary, it clearly appears that the order was given under and in pursuance of the mortgage simply to prevent a foreclosure. There was no consideration for the supposed new arrangement. Without it Myers was entitled to reduce the piano into his possession.
The judgment is reversed.
Reversed.