2 Ill. App. 487 | Ill. App. Ct. | 1877
It appears by the record in this case, that Lewis in his lifetime was the owner of certain personal property which he mortgaged to appellant to secure the payment of several promissory notes given by him to appellant. The mortgage contains the condition that until default is made the mortgagor shall retain the possession of the property; .but upon the maturity of either of the notes and default in payment,' the mortgagee was authorized to take and sell the property.
Lewis died before the maturity of either of the notes, in possession of the property, when appellee was appointed his administrator, and as such received the possession of the mortgaged property and caused it to be inventoried and appraised as a part of the estate of said Lewis.
The mortgage was executed and acknowledged as required by the chattel mortgage act, but was not recorded. Upon the maturity of the first note appellant took possession of the property under his mortgage, for which taking appellee brought this suit in trover and recovered a judgment in the Vermillion Circuit Court for the value of the property.
That an unrecorded chattel mortgage is valid and binding between the parties to the instrument is not open to question. By the statute, however, it is made void as against the rights and interest of third persons, and the only question presented in this case is, whether the administrator is a third person within the meaning of this statute. There is some conflict in the authorities upon this question, but we are of opinion that both sound reason and the weight of authority are, against the position In the lifetime of the intestate no one would question the validity of the mortgage against him, and we think it equally binding upon his heirs and personal representatives. The administrator takes the personal property of deceased as his representative, and acquires no better right than he had. Herman on Chattel Mortgages, p. 159 and 348, and authorities there cited. Chateau v. Jones et al. 11 Ill. 300.
For these reasons the judgment is reversed and the cause remanded.'
Keversed and remanded.
having tried this case in the court below took no part in this decision.
