Cunningham v. Hamilton

25 Ill. 228

• Court: Illinois Supreme Court
• Decided: November 15, 1860
• Status: Published

Opinion

Breese, J.

We think the errors in this case are well assigned. There seems to us to be an entire absence of facts or circumstances tending to vitiate this transaction, and stamp it with fraud. The chattel mortgage on the horse is of unquestioned validity, and the testimony of his delivery to the mortgagee on the evening before the maturity of the note, and the breach of the condition of the mortgage, and the destruction of the note thereupon, is undisputed. The evidence is clear on these points. On the delivery, the horse became for every purpose, the property of the mortgagee, who could loan him, mortgage, sell him, or do as he pleased with him. It was his property.

But it is said, the loaning him to the mortgagor, after he had been in the possession of the mortgagee two or three days, was fraudulent per se. We think not. The title to the horse was perfect in the mortgagee, and he had a right to loan or hire him to the mortgagor or to any one else. He had been in the possession of the mortgagee long enough to apprise all parties of the change of ownership. The whole transaction bears none of the indicia of a fraud in law or in fact. We cannot distinguish the case from that of Brown v. Riley, 22 Ill. 45. In principle it is the same, and must be decided in the same way.

The judgment is reversed, and the cause remanded.

Judgment reversed