| Ill. | Apr 15, 1864
delivered the opinion of the court:
When the owner pledges property or choses in action as a security for the payment of a debt, the creditor, without doubt, has the legal right' to hold the pledge until the debt is discharged. The .owner, to. reinvest himself with the right to resume, possession of the property, must pay the Claim, or at the very least, make a sufficient tender. On the death of the creditor the right to hold the pledge passes to his representatives, and may be exercised by them in the same manner and to the same extent as by the creditor when living. Any other rule would defeat the agreement of the parties, and would work injustice and wrong.
It appears from the evidence in this case that at the time when the note was called for by the agent of the appellee, and' when the sheriff served the writ, appellant claimed to hold the note as security for claims against appellee. And Horton testified that appellee admitted- to him, that appellant held the note for what he owed the estate of Andrew Combs. He was also, .shown the notes and account, and his attention was called to an order which he had given on -Combs, which however was not presented, and he admitted that he owned a portion of the claims. There is'no evidence in the record tbat he had ever paid or tendered the amount due upon the debt; for which the note in controversy was held as security. He also agreed, if appellant would permit Keith to take the note and collect a specified portion of the money, that the note should he returned, which was done. There was no conflicting testimony, and uncontradicted, the evidence establishes appellant’s right to hold the note until the debt should be paid. Appellant’s possession of the note was presumptive evidence that he was the owner, but that ownership was limited by his statements, and it devolved upon appellee to overcome the presumption. The finding of the jury was therefore manifestly against the evidence, and a new trial should have been granted.
If appellant was clerk of Combs, or was the agent of Mrs. Combs, the administratrix of her husband’s estate, it could make no difference whether appellant had the note with appellee’s consent, if it had been pledged in the lifetime of Combs. Whether he held it as agent of the- administratrix, or it came to his hands as the clerk of Combs, and had not been delivered to her, could make no difference. It appears that he had been the clerk of Combs, and he claimed to the sheriff that the note had been placed in his hands by certain parties, and he would render himself liable by giving it up before the debt should be paid, and for that reason declined.
The court modified defendant’s second instruction, by limiting his right to hold the note, only by the consent and agreement of appellee. We have seen that if it came to his possession from Combs, or from Mrs. Combs, as administratrix, and was held as a pledge, it was not material whether it was with the consent of appellee. And appellee showed as a part of his evidence, that appellant claimed to have received it of Combs, and that he held it as a pledge, and this must be regarded as true. This modification was calculated to, and no doubt did, mislead the jury in finding their verdict. The instruction as given was erroneous. The judgment is reversed.
Judgment reversed..