137 Ill. 81 | Ill. | 1891
delivered the opinion of the. Court:
Appellee claims title by virtue of a contract made at the time of surrendering the possession of the property to her, whereby it was agreed that it should be delivered to and accepted by her in payment of her indebtedness against the company. Since this is not inconsistent with a prior mortgage to her upon the same property, and sale thereunder, the question of the existence, in fact, of such mortgage or the making of such sale is manifestly unimportant. Such an agreement might be made, where a mortgage had been executed, to obviate all questions of its legality and of the validity of a sale under it, and it might be made where no mortgage had been executed, the only question being, was it agreed between the parties that possession of the property should be delivered and accepted in payment of appellee’s indebtedness, and was it so delivered and accepted. Of course, if appellant had obtained a lien upon the property prior to its delivery to appellee, then the existence and validity of the mortgage would have to be inquired into. But it is conceded appellant’s judgment was not obtained until several years after the delivery of the property to appellee, and it is not insisted that he had any lien upon it prior to the rendition of his judgment.
Second—We think the evidence of the loan of money to appellee was competent, as showing that she was possessed of and had the control of means in her own right, entirely, independent of her husband.
Third—That it was competent for the corporation to prefer appellee as a creditor, and turn its property over to her in payment of her debt, in good faith, and in the absence of any evidence of a fraudulent purpose, is settled by Reichwald et al. v. Commercial Hotel Co. 106 Ill. 439. But if it be said, although the delivery of this property to appellee in payment of her debt was not in excess of the power of the corporation, it was in excess of the power of the president of the company as its agent, it is sufficiently answered by the fact that the company has, by its silence and failure to repudiate this act of the president for this great length of time, affirmed and ratified it. Hoyt v. Thompson’s Exr. 19 N. Y. 207; Woodbridge v. Proprietors of Addison, 6 Vt. 204; Wood v. King, 45 Ga. 34.
Fourth—Inasmuch as the question of the weight and effect of the evidence is not before us, there is no other point discussed in- argument requiring our attention.
The judgment is affirmed.
Judgment affirmed.
