53 Ill. App. 636 | Ill. App. Ct. | 1894
delivered the opinion or the Court.
The written contract of sale is relied on by appellant, and this suit, based thereon, can not be maintained unless by the contract a lawful lien is created upon the property sold, to secure the unpaid purchase money, or unless the sale is held to be conditional and not absolute. The title to personal property vests immediately in the vendee, upon its sale and delivery to him, and under the law of this State a lien upon personal property, to secure unpaid purchase money, can be preserved as against creditors of the purchaser, in one of two ways only, viz.: By the vendor retaining possession of the property sold until the price is paid, or by the taking of a chattel mortgage upon said property, securing the unpaid purchase money, and properly executed, acknowledged, entered and recorded as required by the chattel mortgage act. And even when a mortgage lien is so lawfully created by strict compliance with the statutory provisions, to be effective as against such creditors, the mortgagee must take immediate possession of the mortgaged property, upon default in the payment of the debt secured when it becomes due. Blatchford v. Boyden, 122 Ill. 657, and other cases decided by our Supreme Court, announce rules substantially as above stated.
It is manifest, therefore, the written instrument relied on, created no lawful lien upon the property in controversy as against Kimball, the creditor of the purchaser. It was not acknowledged by the debtor, but by the president of the vendor company. It was not entered as required by the statute, and unless it was acknowledged by a mortgagor it was not entitled to be recorded under Sec. 4 of the act aforesaid, and the recording of it was a mere nullity. Even if the instrument could be given the effect of a chattel mortgage, the laches of appellant, in failing to take prompt possession, would defeat the lien. The unpaid balance of the ' purchase money, evidenced by the renewal note dated March 17, 1892, became due in ninety days, yet no attempt to get possession of said property was made by appellant until months thereafter. The other ground, that the sale was conditional, upon which is based appellant’s right to recover, is also untenable. By the very terms of the contract the property was to be delivered to the purchaser, and the dominion and control of it was thereby given. The price and character of payments were fixed. This price was paid by the vendee in the mode agreed upon, and it was accepted by appellant. An absolute sale was thus consummated and by the act of the vendor the vendee was given full possession of all the property, evidencing ownership, and inducing the extension of credit to the vendee. Where, as in this case, by the terms of the contract, the purchaser is not obliged to, and in fact has no right to return the specific articles, but is at liberty to return the money value thereof, he becomes a debtor, and the title to the property is changed. It is a sale. Chickering et al. v. Bastress, 130 Ill. 206. Where property is sold and delivered by the vendor to the vendee, it makes no difference Avhat conditions may be attached to such sale for the security of the purchase price, by reserving a lien on the thing sold, or providing the title shall remain in the vendor till the property is paid for.
As to execution creditors, the absolute title to the property passes to the vendee. Hadfield v. Berry, 28 Ill. App. 376; citing Brundage v. Camp, 21 Ill. 330; Murch v. Wright, 46 Ill. 487; Lonergan v. Stewart, 55 Ill. 44; Bastress v. Chickering, 18 Ill. App. 198.
It further appears appellee advanced money to the Brick Go. for a laudable and proper purpose and without any fraudulent design. He was a stockholder in said company, but that did not debar him from furnishing pecuniary aid to carry on its legitimate business, nor make invalid the debt thereby created. Reichwald v. Hotel Co., 106 Ill. 439. His knowledge of said contract did not affect his rights. The judgment he obtained for the amount of the debt was duly entered according to law, and the execution thereunder was lawfully issued and levied upon the property in controversy. Appellee was then an execution creditor of the' vendee, within the meaning of that term as used in the decisions cited. The title to said property was vested in the debtor in execution at the time of the levy and sale, and appellee as purchaser at said sale, became and was the legal owner of the property in controversy, and entitled to the possession thereof as against appellant.
The court below tried the case by agreement, and found the appellee not guilty. The finding was warranted by the evidence, and the judgment against appellant for costs was right. We perceive no reversible error in holding the propositions as requested by appellee to be the law, nor in refusing to so hold as to the propositions requested on behalf of appellant. The judgment is affirmed.