| Ill. | Apr 15, 1858
Sink, the original owner of the property, on the 17th of March, 1856, executed a chattel mortgage upon it, to secure a debt due, one year from that date, which provided that the mortgagor should retain possession till default in the payment should be made. Afterwards, and before the debt became due, Sink sold the property to Sherry, subject to the mortgage, aud he agreed to pay the mortgage debt. On the 17th of February, 1857, and before the first mortgage matured, Sherry mortgaged the same property to Law, to secure a debt of $1,000, which was to run one year, and provided, that the mortgagor should retain the possession till default should be made in the payment; also, providing that if the mortgagee or his assigns should fear waste or diminution of the property, or if mortgagor should attempt to sell or remove the property, or if any execution or writ should be issued and levied, or be about to be levied upon the property, then the mortgagee might take possession of and sell the property for the payment of his debt. An execution in favor of one Fuller and' against Sherry, was, on the 21st May, 1857, issued and placed in the hands of the sheriff. On the 30th of May, 1857, Law assigned the last mortgage to Van Pelt, the plaintiff. Van Patten swears that Sherry delivered up the possession of the property to Knight, under the first mortgage, in March, 1857, but it is certain that Knight suffered the property to remain in the ostensible possession of Sherry till about the time of the assignment of the second mortgage, by Law to Van Pelt. The evidence on this point was somewhat conflicting, and such as would have justified the jury in finding either way. And from the instructions which the court gave, the whole question was made to turn on this single point. For the plaintiff, the court gave this instruction : “ If the jury shall find, from the evidence, that Knight did not take possession under his mortgage, of the property in question, after the notes secured by it had fallen due, and that before Knight took possession under his mortgage, the plaintiff claiming to hold the title to the goods took possession thereof under the Sherry mortgage, assigned to him, then the plaintiff is entitled to a verdict, if it is shown that the contingency had happened upon which plaintiff was entitled to possession under his mortgage.” And for the defendant, the court instructed: “ That if the jury believe, from the evidence, that the mortgage given by Sherry to Law was made in good faith, and that Law had a right to take the property in question at the time of the assignment and sale, yet if, at the time of and before the assignment and sale executed by Law to the plaintiff, the defendant, Knight, had taken possession by himself or his agents, of the property in question, and held the same adversely under his mortgage, Prentiss Law could not transfer the property to the plaintiff so held adversely, so as to give him a title to maintain a suit to the same, and the law is for the defendants.” There certainly can be no just exception taken to this law. When the second mortgage was given, the possession was consistent with it, and Law took it, with full notice of it, and subordinate to that incumbrance. The continuing possession by the mortgagor after forfeiture, was no fraud or injury to him, for he was induced to take no step by reason of such continuing possession. He was not misled by it. It could not transpose the priority of the mortgages, and make the junior first in point of merit. Not so with Yan Pelt, his assignee. If, when he bought, the first mortgage was overdue and the mortgagor still in possession, he had a right to suppose that the first mortgage was paid. When he saw the property in the possession of the mortgagor, when such possession was inconsistent with the terms of the mortgage while unsatisfied, he had a right to act on the supposition that it was no longer a lien. We are satisfied that the case was fairly put to the jury by the court, and although wo should not complain of the verdict had it been the other way, we think we ought not to disturb it.
The judgment must be affirmed.
Judgment affirmed.