Widdecombe v. Dietzsch ( 1883 )

Wilson, J.

It appears from the hill of exceptions that on January 17, 1877, one James 0. Watson executed and delivered to appellant Widdecombe, his promissory note for $300, payable one year after date, and a chattel mortgage of same date to secure the note, upon the goods mentioned in the replevin bond in suit. The mortgage was acknowledged as provided by the act concerning chattel mortgages, and was recorded in the recorder’s office of Cook county, January 18,1877. It also appears that immediately upon the recording of the mortgage, Widdecombe took actual possession of the goods and remained in continuous possession of the same down to the time they were seized by the sheriff upon the execution in favor of Follansbee against Watson, in March thereafter. As between Watson and Widdecombe, the goods were therefore the property of Widdecombe.

Appellee by his second replication to appellant’s plea of ownership, set up the recovery of a judgment against Watson in favor of Follansbee, and the seizure of the goods upon an execution issued thereon, thereby placing himself in a position as judgment creditor, to challenge the bonafides of the mortgage. Had that replication remained as a part of the pleadings in the case, any competent evidence tending to show that the mortgage was fraudulent as against creditors, would have been admissible. But the replication having been withdrawn by appellee, he was left in no position to contest the mortgage, and the court properly excluded all the evidence offered by him on that branch of the case. The mortgage being valid as between Watson and Widdecombe, and showing title in the latter to the goods, the defendant’s plea of ownership was sustained, and the plaintiff was entitled to nominal damages only.

The judgment of the court below is reversed and the cause remanded for a new trial.

Reversed and remanded.