Curran v. Bernard ( 1880 )

Bailey, P. J.

It is a well settled rule of law that a purchaser of personal property, in order to acquire title as against creditors of the vendor, or purchasers without notice, must reduce it to actual possession before their rights attach. Lewis v. Swift, 54 Ill. 436; Broadwell v. Howard, 77 Id. 305; Corgan v. Frew, 39 Id. 31; Lefever v. Mires, 81 Id. 456; Richardson v. Bardin, 88 Id. 124. Where the property is of such character as to be capable of being removed, there must be a real and permanent delivery and change of possession, to enable the purchaser to hold the property against an officer levying an execution upon it for the debt of the vendor. And if the property is permitted to remain with the vendor, the sale will be deemed fraudulent in law as to creditors and subsequent purchasers, although it may have been made in good faith and for an adequate consideration. Allen v. Carr, 85 Ill. 388; Ticknor v. McClelland, 84 Id. 471; Thompson v. Wilhite, 81 Id. 356.

It is clear that in the present case, no delivery of possession to the plaintiff is shown sufficient to protect the property against Curran’s execution. She neither took nor attempted to take manual possession. Instead of assuming charge of the property herself, even for the time being, she directed Bernard to retain it in his own hands, and arranged with him to keep and use it until she had an opportunity to dispose of it. The possession thus continued with Bernard and his firm unchanged down to the date of the levy.

There is no view of the evidence we are able to take under which the plaintiff ought to recover. The verdict is entirely unsupported by the evidence, and the judgment will therefore be reversed and the cause remanded.

Judgment reversed.