26 Ill. 366 | Ill. | 1861
It is not necessary to investigate the propriety of the action of the court below in supplying that portion of the record which was lost. After appearance and trial, the defendant could not object to any defect in, or even a total want of the writ or the attachment bond.
As between the parties to it, delivery was not essential to the completion of the sale of the horse. It was competent for the parties to agree at the time of the sale that the seller might retain possession of the horse as long as he pleased, and upon any consideration which suited him, and no one but a creditor of, or purchaser from the seller could take advantage of the non-delivery to the purchaser, nor could such creditor take advantage of the nondelivery at the time of the purchase, if the sale was real and bona fide, and possession taken before the lien of the creditor attached; and such appears to have been the case here. We find no evidence in the case to show that this sale was merely colorable for the purpose of covering up the seller’s property. The price agreed upon, eighty dollars, was paid, in cash, at the time of the sale ; the horse remained with the vendor for about a year, who paid the purchaser for the use of him. Three months, at least, before this judgment was obtained, for the purpose of completing the sale, so that creditors of the defendant in execution should not take advantage of the non-delivery, the purchaser took possession of the horse, and ever after held possession till he was taken on this execution, on the same day on which the judgment was rendered. Now the sale was complete as to all the world, when the possession was taken, and was as good and perfect as if the sale and delivery had both occurred at that time. If the sale was not fraudulent in fact, the delay in the delivery did not make it fraudulent in law, as to those whose rights accrued subsequent to the time of delivery. The delay of delivery was a circumstance calculated to excite suspicion of the good faith of the original sale, but by no means sufficient of itsell to establish bad faith without other proof. Had a bona fide sale and delivery of the horse been made at the time this delivery took place, no one will pretend that a judgment creditor, who obtained his judgment three months afterwards, could seize the horse in satisfaction of his judgment, nor can it be done with any more propriety in this case, unless there was fraud in fact.
The judgment is reversed, and the cause remanded.
Judgment reversed.
