Laing v. People ex rel. Price , 1893 Ill. App. LEXIS 423 ( 1893 )

Opinion of the Court,

Gary, P. J.

Isaiah F. Laing and George Laing were second cousins, and partners, as merchants, under the name of I. F. Laing & Co. They became indebted to Charles A. Laing and his son, John H., brother and.- nephew of George, and to pay them, made a bill of sale to them of all the property of the firm.

Bobert P. Price and James E. Keith were creditors of I. F. Laing & Co., and filed in the County Court a petition to have that bill of sale declared to be an assignment for the benefit of creditors, upon the allegation that at the time of the execution of the bill of sale it was understood and agreed between the parties to it that after paying the debts which it was given to pay, “the surplus, if any, should be turned over to the attorney of said- Laings for the benefit of other creditors of said Isaiah F. and George Laing.”

It is now disputed between the parties to this suit, whether the evidence proves the allegation quoted or not; and it makes no difference which is right on that matter of fact.

If the bill of sale was given only as security, and to furnish a means of payment, instead of an absolute payment, then it was a mortgage from which the grantors might redeem, and if they did not redeem and there was a surplus, they could direct its disposition. Giving such direction in no Avay affects the character of the instrument. It does not charge the body of the property, which the appellants took for their OAvn benefit, with any trust.

We have been over this subject at such length in First Nat. Bk. v. North Wis. Lumber Co., 41 Ill. App. 383, that it is sufficient to refer to that case as authority for reversing this decree, declaring the bill of sale to be an assignment.

The decree is reversed and the cause remanded to the County Court with directions to dismiss the petition at the cost of said Price and Keith, of whom the appellants will also recover their costs in this court.