*1 par. This latter has been upheld ap- plied sentences under the here involved, (People v. VanBever, and we see reason for not no valid supra,) upholding sentence here. judgment is affirmed. municipal
Per Curiam : The foregoing opinion reported as the hereby Edmunds adopted opinion the court, and therewith. judgment entered accordance
Judgment affirmed. (No. 19783 . in Error, Plaintiff vs.
Frank P. et al. Defendants in Error. Opinion Rehearing October denied Dec. filed 193 0 *2 and B. Hon A. Connelly, Weld, Searle, & Walker in A. error. (H. counsel,) plaintiff nold, Weld, R. W. in Olmsted, for defendants error. this reported opinion: Partlow
Plaintiff in error, the Illinois filed Refining Company, its bill in the circuit court of Rock Island county against Frank P. R. H. Welch, H. the General Ameri- Luckenbill, can Tank Car Corporation, Oil the Kawfield Oil enjoin tank cars to the in belonging in error which were plaintiff Illinois Oil Company. grounds for the action were, no consideration for the
notes executed error of a certain in basis plaintiff contract or and because the contract or awas fraud. The cars were sold notwithstanding filing bill and American Tank General Car Corporation them for After the sale the bill purchased $32,075. amended the sale was invalid and notes up setting and contract were neither executed nor lawfully ratified, that the sale be set aside be praying *3 ter statute; (Smith’s that 1929, 1942;) Stat. p. 95 both the Illinois and the Kawfield Oil Refining Company Illinois, resided Island, at Rock Company, mortgagors, have made, where the sale should as provided Granville, Putnam statute; sale took place when the mort- none the cars were located Illinois, where made as that the sale was not made, was and gage Defendants of leasing. and the contract in articles 5 has no ap- chapter in error insist that paragraph here the facts presented, plication therefore these facts, to cover enough broad in in- a this was contract and that violation, statutory no no has application. and commerce terstate were three oil companies that these shows The evidence each was of residence and place corporations Illinois the Illi- business Island. Rock was Kawfield Oil Company Company Refining nois in oil produc- engaged and they Oklahoma, Cushing, tion. Illinois Oil was Company engaged buying and oil and its selling was at business principal place Rock Island. Frank P. the same Welch owned practically percentage stock of each Decem- capital On company. ber 1, 1923, directors of the Illinois Refining Company were Frank P. Welch, C. Welch, W. Armstrong, E. J. M. and M. Harvey Welch. The first three were
John J. also directors of nine Illinois Oil which had directors. The directors Kawfield Oil Company were Frank P. M. Bottles and M. Welch, W. Har- John Frank vey. P. Welch was and president general manager Illinois Oil and treasurer of Illinois Company of the Illi- Refining C. Welch was Company. president E. nois its sec- W. Armstrong J. retary. M. of the Kawfield Oil Harvey president John and M. W. Bottles was its secretary. 1,
On December 1923, Refining Company was the owner of a subject steel tank thirty-two cars, small undivided interest claimed the Kawfield Oil Com- pany. About December called a “con- 1, 1923, document tract of of Frank the direction leasing” prepared P. Welch. It was executed and by as lessor by Luckenbill Kawfield Oil Com- Refining Company as lessees to secure an first lien issue of trust $1000, each for first mature car-equipment notes, and two each months thereafter. six maturing June On the date this contract was executed none of these cars Putnam county, Illinois, refining company was insolvent. after several unsuccessful Welch, making to raise attempts mort- refining company by these tank to take cars, gaging selling agreed *4 on them for In November, $32,000. 1923, refining in $12,000 drew on Welch of the company anticipation of these mortgage negotiations. negotia- completion tions were and finally delivery completed, was distributed in $32,000 *5 sale. the to enjoin to a suit been filed reference having with any before of this fact came purchaser Knowledge the time that at It is claimed paid. county. car in Putnam was made there was one only with the between controversy parties There was some loan was the the securing reference to whether instrument found The decree effect a chattel legal mortgage. of a chattel lien in the nature was an equitable in that finding acquiesced Counsel both sides practically of this case. for the and it will be so considered purposes If the a chattel mortgage instrument was there is unless reference to chattel mortgages applicable of the opera- take the case out in the record to something tion of the statute. as follows: our statutes Paragraph chapter 95 power
“That all sales of personal property be made shall sale contained in chattel any where the resides, or property where county mortgagor one are more than If there is situated when mortgaged. in the where mortgagor pos- then county mortgagor, at the time of taking posses- session of the resides property sion etc. (Smith’s p. Stat. mortgagee,” which There in this neither of case, were two mortgagors had at the time the mortgage property not within the was executed. The State property executed. We do Illinois at the time the in error with the contention of defendants agree to the facts statute are not provisions applicable here It is the and intent this purpose presented. shall under chattel that sales mortgages personal property re- at some definite where mortgagor place place or, is situated when sides or where property mortgaged, more than one then in the county if there are mortgagor, time of resides where the mortgagor If there are more than by mortgagee. taking possession them in the same and both all of live one mortgagor is the and intent of the statute that county, purpose sale shall be made in the both or all reside. where county To hold that where there are two mortgagors of the statute does not that it is only applicable but apply conflict with where there is but is in direct one mortgagor In this case and intent of statute. purpose was in Rock Island of residence of both mortgagors in that and the sale should have been held county. *6 did not The decree found that the Kawfield Oil Company or the use there and never interest the cars have, had, any is not contro of or the revenue therefrom. This finding If is true there but one actual verted. finding have had where that and the sale should mortgagor There of waiver or estop resided. is no question mortgagor it was on the of in error. When apprised pel part it on both Welch of the sale served notice proposed bill for the filed a sale, not to ahead with lessor go or third of creditors The fact that injunction. rights an for the statute immaterial, involved is were not parties and it the duty of the for the benefit mortgagor plainly that statute. A to with power of the mortgagee comply with the in accordance grant, must be exercised strictly if to of the is a person complain power proper grantor It Dennison, Ill. v. not done. Waite ( that is cannot be heard that the power not the law grantor at same without exercise to of its irregular complain financial injury. time showing the stat- by not not made as only The sale was with in accordance provisions not made ute but was of the contract leasing pro- Article mortgage. with- forthwith, may the lessor in case of default vides and, 'due and the notes payable, declare all of notice, out take prop- otherwise, may or possession his agents by the lessees from same withdraw erty, Article or sale. either private public and sell same instead of lessor, taking possession that the provides in any chancery file his a bill may or agent, himself the mortgage. foreclose jurisdiction of competent made until after lessor did not making In the mortgage. foreclose not file a bill to and did either not with the sale he did comply resi- instrument All parties as a construed has been The instrument of Illinois. dents Illinois. the laws and it is chattel mortgage governed execution after the was, The fact that the property not remove does commerce used in interstate mortgage, reference the statute from operation property made not sale was in case of default. of sale creating and the instrument accordance with found. so and the decree properly on the or not the is whether payments The next question was fore the time it default at chattel were in ,that in de they closed. Plaintiff in error insists the cars were fault for the reason that earnings of the mort and interest be applied there if it had been done was not done, This gage. shows that be would have been no default. The evidence there was certain fore the chattel was executed *7 of these various between the officers corpo correspondence of the cars with reference to earnings rations pledging on the and interest mortgage, payment principal for such but the makes no payment. mortgage The written all negotiations leading mortgage superseded Lawrence, 11; to its v. Ill. v. execution, (Wolf Lane 276 Allen, 162 therefore the were not id. 426;) earnings pledged The shows that of evidence payment after the was executed Com mortgage P. became indebted to Frank Welch the sum he had advanced to which it, money for which money $4500 and it later became indebted to was subsequently re-paid, For some time after the him in the sum of mortgage $8000. executed the cars were earnings applied 300
payment and interest but after thereon, plaintiff in error became further he indebted to Welch applied earnings cars to the his unsecured indebt payment edness. Where a debtor at the time of making payment fails to he direct its it as the creditor may application apply neither pleases different debts due him. Where the debtor nor creditor makes such pay application ment the law will for which secur first to the debt apply ity Schmidt, is most Ill. Wilhelm v. ( precarious. the unse had the these right apply payments cured indebtedness due therefore the due him, payments the chattel fore were in default and a right closure existed. the notes in the sum bill is that prayer can and the surrendered and
$28,000, shall be celed. Plaintiff in is not entitled to this relief. error It was evidence that the was bona shows fide. error, executed benefit of the plaintiff of bona derived therefrom was used fide the balance debts of the in error. Without paying plaintiff have the mort in error not be entitled to due, would and canceled. v. Wal Rigdon and notes surrendered gage Dunbar American Co. cott, Telephone Ill. v. 649; Farwell, Babcock v. id. id. 9; is reversed and For the indicated the judgment errors directions to circuit court, the cause remanded to the sale on the aside the ground enter a decree setting and the conditions as was not conducted in the chattel mortgage. stated reported opinion The foregoing Per : Curiam opinion hereby adopted Partlow therewith. in accordance entered court, judgment with directions. remanded, Reversed notes unpaid surrendered and canceled. The was referred cause master to take the evidence and his conclusions. He report found that to the relief as error was entitled bill. A its decree was entered favor prayed plain- tiff in error and an appeal prosecuted Appellate for the District, Court where decree was reversed Second remanded, cause with directions dismiss bill. cause comes to a writ certiorari. Plaintiff in error insists that the sale should be set aside because it was made violation of paragraph chap-
Notes
notes of the debts of refining principal part company, which had been It Welch. secured, guaranteed paid is not claimed that were these debts not any legitimate or that Decem- they were not incurred in faith. On good ber 27, 1923, joint of the of directors board meeting Oil Com- and the Kawfield Refining Company of the was held in and the action pany Cushing, Oklahoma, officers the loan of the refining negotiating company to De- $32,000 on Prior December was ratified. 1, 1923, cember to the Illinois 1, these had leased 1923, cars been that Oil in the possession continued they were marked until March company 15, They of the cars X., letters I. owned O. C. meaning privately Illinois In the stockholders March, Oil Company. 1926, and did new directors elected Refining Company notice Welch sent re-elect On 17, 1926, Welch. April of $28,000 that was the owner to the effect he Luckenbill makers the notes, the others having paid; 1, 1925, default and had not due paid $2000 June due interest due December 1, 1925, $2000 $1500 trus- Luckenbill, demanded that March 20, 1926. take tee, declare all of the notes due and payable, sell them On April cars and Com- notice to the Illinois sent a 1926, Luckenbill that he would stating Oil Kawfield May 15, on cars and sell same Bank, of the Granville at front door State 14, 1926, May Illinois. On Putnam Granville, sale, alleging filed to restrain bill in this case was in the no default and that contract was void the same day upon served on A summons was payments. The sale was the next day Welch and on Luckenbill. notice and the cars held as specified nevertheless American Tank Car Corporation the General purchased the Illinois Refining Attorneys representing for $32,075. and made some statements were present