Gilbert v. Murray , 1897 Ill. App. LEXIS 158 ( 1897 )

Mr. Justice Gary

delivered the opinion of the Court.

This case is argued upon the assumption by the parties that the appellee had a chattel mortgage upon some tents, and that the appellant, as sheriff of Cook county, under an execution issued upon a judgment against the mortgagor, levied upon the tents, which the appellee thereupon replevied by this action. Two special replications to the plea of the appellant, justifying under the execution, were not answered by rejoinders; but we will consider the case as the briefs assume it to be.

The mortgage provides that the mortgagor may retain possession of the tents “ to keep and use the same until it, or its successors or assigns, shall make default in the payment of said sum or sums of money above specified, at the time or times, and in the manner hereinbefore stated, and the said mortgagor hereby convenants and agrees that in case default shall be made in the payment of the sum aforesaid, or any part thereof, on the day or days, respectively, on which the same shall become due and payable, then all of said sums of money remaining unpaid shall, at the option of the said mortgagees, their executors, adminstrators or assigns, with three days’ notice in writing of said option to mortgagees, become at once due and payable, and the said mortgagees, their executors,. adminstrators or assigns, or or any of them, shall thereupon have the right to take immediate possession of said property, and for that purpose may pursue the same wherever it may be found, and may enter any of the premises of the mortgagor, with or without force or process of law, wherever the said goods or chattels may be, or be supposed to be, and search for the same, and if found, to take possession of, and remove and sell and dispose of said property, or any part thereof, in any manner whatever, as the said mortgagees may choose to do with their own property.”

The appellant insists that the three days’ notice is a condition precedent not only to the whole debt becoming “ at once due and payable,” but also to the right of the mortgagee to take possession of the property at all before the whole debt was due by the original terms.

A large part of the debt had become due and remained unpaid before this action was commenced.

A chattel mortgage is a sale (defeasible) of the property to the mortgagee, attended by the right of possession by the mortgagee, except so far as that right is limited by the terms of the mortgage. Here the limitation is that the mortgagor might retain possession until default in payment. The event had happened before this suit was commenced, and so the right of possession by the mortgagor had come to an end.

If, therefore, there was no objection to the mortgage other than is brought to our notice, the appellee was entitled to the possession of the property. Nevertheless, the case'was wrongly decided below. The mortgagor being yet in fact in possession, a levy upon the property was rightful. To make the possession of the sheriff wrongful a demand upon him was necessary. We do not decide that a demand upon him in person was necessary; that question is not before us, for there is no proof of any demand upon him, or anybody having any connection with him. In fact, there is no proof that he ever had anything to do with the property, and the judgment against him for costs is wrong. Upon the pleas denying the taking, and the detention, the verdict should have been in his favor. Keller v. Robinson, 153 Ill. 458.

The judgment is reversed and the cause remanded.