| Ill. | Apr 15, 1858
The plaintiff in error questions the decision
of the Circuit Court in overruling his motion for a new trial, because, it is alleged, that the verdict was not warranted by the evidence in the case. There can be no question but the law does permit a debtor in failing circumstances to make an assignment of his property for the benefit of his creditors; and if fairly and bona fide made, it passes the title in such property to his assignee, for their benefit. The question of fairness and bona fiides of the transaction is a question of fact for the finding of the jury. The plaintiff’s instructions which were given, properly left that question to the jury for their determination from all the circumstances in evidence. They have found that it was fair, and we have no disposition to disturb their finding. It was urged that the deed of assignment was in operation as against the creditors, because it was not recorded before the levy was made. This deed only purported to transfer personal property, and we have not been referred to, nor are we aware of any decision which requires it, where the possession accompanies the deed of assignment.
On a sale of chattels, whether by bill of sale, by mortgage, by deed of trust, or on a verbal sale, the title rests and becomes complete against creditors and subsequent purchasers, by a delivery to'the purchaser, mortgagee or trustee. Possession of chattels is notice and evidence of ownership.
The 20th chap. B,. S., section 1, p. 91, provides that: “ No mortgage on personal property shall be valid as against the rights and interests of any third person or persons, unless possession of such personal property shall be delivered to and remain with the mortgagee, or the said mortgage be acknowledged and recorded as hereinafter directed.” This provision clearly makes the delivery of possession as effectual as the acknowledgment and record of the mortgage. And the last section of the chapter extends its provisions to bills of sale, deeds of trust, and conveyances of chattels. There is no force in this objection.
It was insisted that the court below erred in refusing to give the defendant’s fifth instruction. That instruction, as asked, was: “ If the jury believe, from the evidence, that, after the alleged assignment from Osbourne to Pearson was executed, and before the same was recorded, and before the other creditors of said Osbourne had in any way assented thereto, Osbourne confessed a judgment, in favor of Pearson & Dana, for the amount, or more than their claim, as set forth in the schedule attached to said assignment, and that execution was thereupon issued upon such judgment, and levied on the property alleged to have been assigned, then the verdict should be for defendant; such alleged assignment being thereby virtually abandoned, annulled and released by the parties thereto, the only parties on whom it had any binding force.”
The court gave as a modification of the foregoing, the following instruction: “ If the jury shall find, from the evidence, that after the alleged assignment to Pearson, and after the levy of the Whipple execution by deputy sheriff Anderson, and possession taken by him, the debtor, Osbourne, confessed a judgment in favor of Pearson & Dana for the amount of their claim, including also the claim of Ward, the other preferred creditor, and that Pearson thereupon caused execution to be issued, and directed a levy upon the assigned property to be made by Anderson, and that the said judgment was so confessed, and execution was so levied, with the intent to abandon said assignment, then the levy under the Whipple execution acquired a priority of lien over the goods in question, and the jury should find for the defendant.” This instruction was based on the evidence, and the question presented is, whether the facts supposed by the instruction, if they were found to exist by the jury, would have the legal effect of an abandonment of the assignment by the parties; or whether the acts done, to have such effect, should have been accompanied with the intention to abandon. In all transactions which are tainted with fraud, the intention of the parties is a material ingredient. The intention is manifested by their acts, to some of which the law attaches the effect of conclusions, which cannot be explained or rebutted, while others may. But in this case the question was whether the parties had abandoned the assignment, and had virtually canceled the deed. No reason is perceived why the acts of these parties should be held conclusive of such intent. They acted as men usually do under such circumstances. Osbourne had preferred Pearson and Ward, two of his creditors, by the assignment, and when the property was levied on under an- execution in favor of a creditor who had not been preferred, and taken out of the possession of the assignee, it was natural for Pearson and Ward to desire to retain the preference which the assignment had given them, and it was consistent with the debtor’s previous acts to assist them in retaining such preference. The mode suggested to attain that end, in the event that the contest then commenced over the assignment should result in its invalidity, was to procure a judgment and levy. They, it seems, were advised by their attorney to this course, and it was proper to leave it to the jury, under all the circumstances, to determine what their intention 'was. They have found the fact that it was not to abandon, and we think the evidence justified the finding. Upon the whole record no error is discovered for which the judgment of the Circuit Court should be reversed.
Judgment affirmed.