Stuart, J.
Complaint by Blystone against Burgett for the recovery of a yoke of oxen alleged to be unlawfully detained, &c. The defendant denied generally Blystone1s right to the possession. Trial by the Court, and finding for the defendant.
The trial was had upon an agreed statement of facts. Both parties claimed title to the oxen from one Yeatly. It appears that on the 24th of November, 1854, Yeatly mortgaged to Blystone the oxen in controversy. The mortgage was executed in Cumberland county, Illinois, where both Yeatly and Blystone resided. The object of the mortgage, (including other property besides that claimed here,) was to secure a note of 375 dollars. There was no reservation of the possession of the mortgaged property in the mortgagor. The mortgage was recorded four days after its execution in the recorder’s office of Cumberland county, and state of Illinois,
It is admitted in the agreed statement of facts that the mortgage was made in good faith between the parties.
[29]*29The possession of the mortgaged property remaining in the mortgagor, Yeatly, he removed the oxen thus mortgaged from the state of Illinois to the state of Indiana, without the knowledge of Blystone, and there sold them to one Cary, without disclosing the mortgage, and Coxy sold to the defendant Burgett. It is further agreed that demand was duly made after sale and before suit, and that the value of the oxen was 80 dollars.
And the only question is, which title shall prevail, that of the mortgagee in Illinois, or that of the purchaser in Indiana ?
We are referred to the case of Ingersoll v. Emmerson, 1 Ind. F. 76, as a case in point in favor of the title of the mortgagee. But we think the distinction between the two cases is well defined. In the case in 1 Ind., Gideon Halliday, who sold the boat, was a mere bailee. The boat was mortgaged at Cleveland, Ohio, bailed to G. H. for a particular purpose, and while thus in his possession G. II. sold the boat at Lafayette, Indiana. It was held, that if the bailee of goods for a particular purpose, not having the indicia of property other than its possession and control, sell, in contravention of such purpose, to a bona fide purchaser without notice, the latter cannot resist the claim of the real owner.
But the case at bar is very different. The mortgagor, having never parted with the possession, nor made any stipulation to do so, drove the oxen beyond the jurisdiction of Illinois, and there sold them. In this case, the party assuming to sell was the mortgagor in possession. His possession was not for a special purpose. He was not a bailee. The mortgagee had no right of possession until condition broken; hnd it is doubtful whether he had then, without a judicial proceeding. Yeatly was still the owner in possession, and nothing in the mortgage provided how that possession should be taken from him.
Perhaps it would readily occur to any one, that as to innocent purchasers, or bona fide creditors without notice, the mortgage was fraudulent and void. But that is again removed by the admission of Burgett, himself an innocent [30]*30purchaser without notice, that the mortgage was executed in good faith. The badge of fraud which the possession of the mortgage implied could have been explained by evidence, showing the mortgage to have been a bona fide transaction. This is quite as effectually accomplished by the admission of Burgett. Suppose the mortgage to be otherwise valid in this state, Burgett’s admission removed the only obstacle in the way of Blystone’s recovery.
But it remains to be considered what effect is to be given to the Illinois mortgage. The statute of Illinois authorizing the mortgage of chattels, if there be any, is not pleaded. We cannot know judicially that there is such a statute. A chattel mortgage was unknown at common law.
Under some of the earlier decisions, we might indulge the presumption that the common law prevails in Illinois. Thus, in Titus v. Scantling, 4 Blackf. 89, it is said that the common law, so far as it does not interfere with the statutes of a state, must be presumed to be in force in such state. And the same presumption was indulged fifteen years earlier, in Stout v. Wood, 1 Blackf. 71. See, also, Wright v. Delafield, 23 Barb. 498. But this presumption of the prevalence of the common law in Illinois, destroys Blystone’s title at once. For where there could be no chattel mortgage, Blystone acquired no title.
But this rule, presuming the existence of the common law in a sister state, is very much shaken, if not entirely overthrown, by the later authorities. See Shaw v. Wood, 8 Ind. R. 518, and the authorities there cited
It is held by this Court, in Franklin v. Thurston, 8 Blackf. 160, that a mortgage sought to be foreclosed in this state must be presumed to have been executed here, until the contrary appears. And this doctrine is followed in Hutchins v. Hanna, 8 Ind. R. 533, and Shaw v. Wood, id. 518. But in neither of the instruments there in suit was the state mentioned on the face of the instrument. But here the mortgage purports to be executed in Cumberland county, in the state of Illinois, and to be acknowledged and recorded there. This cuts off all presumption as to the [31]*31place of its execution. We cannot contradict the face of the instrument by any presumption of its having been executed in this state, for the purpose of having our laws apply. In^such case it can only be affected by the laws of Indiana after it has undergone some change under them. Doe v. Collins, 1 Ind. R. 24.
We have been referred by counsel outside of the case, who took an interest in the question, to 2 Hilliard on Mort. 412 to 416, 2 Spears, 556, and Offut v. Flagg, 10 N. H. R. 46. In Hilliard, there is a general review of the authorities on the question of chattel mortgages. We have not been able to find 2 Spears in the state library. The case of Offut v. Flagg, supra, is this: Alanson Coon, on the 30th of May, 1836, mortgaged to Offut a certain lot of personal property at Lowell, Massachusetts, at which place the parties then resided. The mortgage was given to secure 50 dollars on demand, and was duly recorded on the day of the date, in said Lowell, in conformity to the laws of Massachusetts. In June, 1837, Coon moved to Nashua, New Hampshire. In October, 1837, Flagg attached the mortgaged property for a debt contracted at Nashua. In November following, Offut demanded the mortgaged property of Flagg, who refused to deliver, &c. The mortgage was never recorded in New Hampshire, though Offut knew that Coon had left Lowell, Massachusetts.
On this state of facts, the question was submitted to the Court whether Offut, the mortgagee, was entitled to recover the property.
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Stuart, J.
Complaint by Blystone against Burgett for the recovery of a yoke of oxen alleged to be unlawfully detained, &c. The defendant denied generally Blystone1s right to the possession. Trial by the Court, and finding for the defendant.
The trial was had upon an agreed statement of facts. Both parties claimed title to the oxen from one Yeatly. It appears that on the 24th of November, 1854, Yeatly mortgaged to Blystone the oxen in controversy. The mortgage was executed in Cumberland county, Illinois, where both Yeatly and Blystone resided. The object of the mortgage, (including other property besides that claimed here,) was to secure a note of 375 dollars. There was no reservation of the possession of the mortgaged property in the mortgagor. The mortgage was recorded four days after its execution in the recorder’s office of Cumberland county, and state of Illinois,
It is admitted in the agreed statement of facts that the mortgage was made in good faith between the parties.
[29]*29The possession of the mortgaged property remaining in the mortgagor, Yeatly, he removed the oxen thus mortgaged from the state of Illinois to the state of Indiana, without the knowledge of Blystone, and there sold them to one Cary, without disclosing the mortgage, and Coxy sold to the defendant Burgett. It is further agreed that demand was duly made after sale and before suit, and that the value of the oxen was 80 dollars.
And the only question is, which title shall prevail, that of the mortgagee in Illinois, or that of the purchaser in Indiana ?
We are referred to the case of Ingersoll v. Emmerson, 1 Ind. F. 76, as a case in point in favor of the title of the mortgagee. But we think the distinction between the two cases is well defined. In the case in 1 Ind., Gideon Halliday, who sold the boat, was a mere bailee. The boat was mortgaged at Cleveland, Ohio, bailed to G. H. for a particular purpose, and while thus in his possession G. II. sold the boat at Lafayette, Indiana. It was held, that if the bailee of goods for a particular purpose, not having the indicia of property other than its possession and control, sell, in contravention of such purpose, to a bona fide purchaser without notice, the latter cannot resist the claim of the real owner.
But the case at bar is very different. The mortgagor, having never parted with the possession, nor made any stipulation to do so, drove the oxen beyond the jurisdiction of Illinois, and there sold them. In this case, the party assuming to sell was the mortgagor in possession. His possession was not for a special purpose. He was not a bailee. The mortgagee had no right of possession until condition broken; hnd it is doubtful whether he had then, without a judicial proceeding. Yeatly was still the owner in possession, and nothing in the mortgage provided how that possession should be taken from him.
Perhaps it would readily occur to any one, that as to innocent purchasers, or bona fide creditors without notice, the mortgage was fraudulent and void. But that is again removed by the admission of Burgett, himself an innocent [30]*30purchaser without notice, that the mortgage was executed in good faith. The badge of fraud which the possession of the mortgage implied could have been explained by evidence, showing the mortgage to have been a bona fide transaction. This is quite as effectually accomplished by the admission of Burgett. Suppose the mortgage to be otherwise valid in this state, Burgett’s admission removed the only obstacle in the way of Blystone’s recovery.
But it remains to be considered what effect is to be given to the Illinois mortgage. The statute of Illinois authorizing the mortgage of chattels, if there be any, is not pleaded. We cannot know judicially that there is such a statute. A chattel mortgage was unknown at common law.
Under some of the earlier decisions, we might indulge the presumption that the common law prevails in Illinois. Thus, in Titus v. Scantling, 4 Blackf. 89, it is said that the common law, so far as it does not interfere with the statutes of a state, must be presumed to be in force in such state. And the same presumption was indulged fifteen years earlier, in Stout v. Wood, 1 Blackf. 71. See, also, Wright v. Delafield, 23 Barb. 498. But this presumption of the prevalence of the common law in Illinois, destroys Blystone’s title at once. For where there could be no chattel mortgage, Blystone acquired no title.
But this rule, presuming the existence of the common law in a sister state, is very much shaken, if not entirely overthrown, by the later authorities. See Shaw v. Wood, 8 Ind. R. 518, and the authorities there cited
It is held by this Court, in Franklin v. Thurston, 8 Blackf. 160, that a mortgage sought to be foreclosed in this state must be presumed to have been executed here, until the contrary appears. And this doctrine is followed in Hutchins v. Hanna, 8 Ind. R. 533, and Shaw v. Wood, id. 518. But in neither of the instruments there in suit was the state mentioned on the face of the instrument. But here the mortgage purports to be executed in Cumberland county, in the state of Illinois, and to be acknowledged and recorded there. This cuts off all presumption as to the [31]*31place of its execution. We cannot contradict the face of the instrument by any presumption of its having been executed in this state, for the purpose of having our laws apply. In^such case it can only be affected by the laws of Indiana after it has undergone some change under them. Doe v. Collins, 1 Ind. R. 24.
We have been referred by counsel outside of the case, who took an interest in the question, to 2 Hilliard on Mort. 412 to 416, 2 Spears, 556, and Offut v. Flagg, 10 N. H. R. 46. In Hilliard, there is a general review of the authorities on the question of chattel mortgages. We have not been able to find 2 Spears in the state library. The case of Offut v. Flagg, supra, is this: Alanson Coon, on the 30th of May, 1836, mortgaged to Offut a certain lot of personal property at Lowell, Massachusetts, at which place the parties then resided. The mortgage was given to secure 50 dollars on demand, and was duly recorded on the day of the date, in said Lowell, in conformity to the laws of Massachusetts. In June, 1837, Coon moved to Nashua, New Hampshire. In October, 1837, Flagg attached the mortgaged property for a debt contracted at Nashua. In November following, Offut demanded the mortgaged property of Flagg, who refused to deliver, &c. The mortgage was never recorded in New Hampshire, though Offut knew that Coon had left Lowell, Massachusetts.
On this state of facts, the question was submitted to the Court whether Offut, the mortgagee, was entitled to recover the property.
In examining the question, that Court in substance say that, being recorded where the parties at the time resided, the conveyance became legally a mortgage; that there was no provision of the laws of New Hampshire inconsistent with its validity; and that the moving of the property from one jurisdiction to another did not contravene any statutory provision. It was further said, that the law of New Hampshire was silent on the subject, and was not to be extended in its operation beyond the cases specifically provided for.
But this case is clearly distinguishable from that at bar. [32]*32The mortgage was duly recorded on the day of its date, in conformity to the laws of Massachusetts. That is the material point in the case. Had the laws of Illinois been brought judicially to the notice of the Court in this case, as they appear to have been in that, so that we could have said here as they said there, that the mortgage was recorded agreeably to the laws of Illinois, we should have had no difficulty in sustaining the validity of the mortgage (2)-
W. C. Wilson, for the appellant.
G. S. Orth and J. A. Stein, for the appellee.
So far as regards personal property, we are inclined to give a mortgage such effect as it is shown to be entitled to in the state where it was executed.
Per Curiam. — The judgment is affirmed with costs.
See 15 Maine R. 147.