74 Ill. App. 230 | Ill. App. Ct. | 1898
deliveeed the opinion of the Coubt.
A plaintiff in trover must recover upon the strength of his own title, and not upon the weakness of the title of his adversary. He must not only show a tortious conversion of the property by defendant, but that at the time of such conversion he had the right of property, either general or special, in the chattels converted, and also the possession or the right to the immediate possession thereof. Union Stock Yard Co. v. Mallory, etc., Co., 157 Ill. 554; Frink v. Pratt, 130 Ill. 327; 1 Chitty’s Pl. 149. The only title of appellee to this corn was by virtue of his chattel mortgage securing his $700 note. Prior to the alleged conversion of the corn he assigned that note in blank and delivered it and the chattel mortgage to Kreider & Harpham under the provisions of the contract above stated. The assignment of said note and the delivery of it and the chattel mortgage passed all Frank’s interest in the mortgaged property to Kreider & Harpham. Jones on Chattel Mortgages, Sec. 503; Gaff v. Harding, 48 Ill. 148. He never afterward repossessed himself of said note and mortgage, and therefore has no title which will enable him to recover in this action.
It is urged his assignment of the note and delivery of the note and mortgage were void because procured by fraud, duress and conspiracy. This position finds no support in the evidence. Mrs. Smith’s mortgage debt was nearly due, and she and her agents had a right to foreclose it when due; and there were circumstances which might well have justified her in foreclosing it in October. Henry Smith had judgment notes long overdue, and had a right to enter judgments thereon, and had directed his agents, Kreider & Harpham, to do so. By entering such judgments and suing out executions he would have obtained liens upon the personal property of Omar E. Fanning and could have sold at once at a probable loss to Omar E. Fanning. Kreider & Harpham had judgment notes and a like right to judgments and executions and levies. The so-called “threats” were but announcements that unless further secured they would pursue their legal rights. The members of the family consulted each other and their own and their father’s attorney and determined to take the course here pursued. The testimony shows Frank acted upon his sister’s advice and request. There was no fraud, no duress, no conspiracy, no over-persuasion to an unwise course. The family, including Frank, acted on their own judgment and the advice of their attorney, with a full knowledge of the facts.
It is urged Frank’s assignment of the note and delivery of the note and mortgage were void because Phoebe had no authority to sign her father’s name to said contract. She testified she had no express authority from her father for that particular act, but that what she did she did for her father, that she supposed she was representing the interests of the family, including her father, and that she was seeking to do what her father’s interest required. Defendants proved that in other financial matters with other parties about that time she acted for her father. Her father ratified the contract she made in his name by signing and swearing to the affidavit of mortgagor for the extension of the Caroline Smith chattel mortgage on November 9, 1896. The contract was carried out by Kreider & Harpham, and Omar E. Fanning received its benefits. There is no evidence in this case he has ever repudiated it or sought to do so. Frank lived with his father and must have known then as well as now the extent of his sister’s authority to represent their father. We are of opinion Frank assigned his note and delivered it and his chattel mortgage upon a valid consideration, and that defendants had the-right to apply the proceeds of the sale as the contract provided. There was a dispute whether Kreider & Harpham had a right also to pay a certain $35 note out of said proceeds, but that does not affect the result in this case.
Many instructions were given for plaintiff upon the subject of fraud and duress. There was nothing in the evidence to justify them. The seventh instruction for plaintiff did not even leave that question to the jury, but assumed fraud and duress had been proven. The judgment will be reversed, and as plaintiff has no title to maintain the action, the cause will not be remanded.
Finding of Facts.
Finding of facts to be incorporated in the judgment:
Wftjjnd -the plaintiff never had possession of the corn described in his declaration;, that when he brought this suit he had no right to its immediafiTlDossessiorilTbat the only ngEFhWevérTíñd therein was by virtmToflTchattel mortgage given him by Omar E. Fanning, then owner of said corn, to secure a note of $700 running to said plaintiff; that on October 19, 1896, and before said alleged conversion, for a valuable consideration plaintiff assigned said note in blank and delivered it and said chattel mortgage to Kreider & Harpham to be held by them as collateral security for certain judgment notes owing by Omar E. Fanning to Henry Smith and to Kreider & Harpham; that plaintiff has never since owned or possessed said note and chattel mortgage, nor acquired the right to repossess himself thereof; and that he had no title to said corn when this suit was brought, and has no right of action herein.
