Hewitt v. Gibson

93 Ill. App. 427, 1900 Ill. App. LEXIS 339

• Court: Appellate Court of Illinois
• Decided: February 13, 1901
• Status: Published

Opinion

Me. Justice Dibell

delivered the opinion of the court.

This was a replevin suit for a piano, brought before a justice of the peace by Hewitt against Gibson, a constable, who had seized the piano upon an execution he held against Mrs. Anna Hamalle. On an appeal to the Circuit Court, and a trial there, defendant had a verdict and a judgment, and plaintiff appeals.

Mrs. Hamalle was a lessee of the Arlington Hotel in Peoria, and a daughter of Hewitt. In the latter part of December, 1897, Mrs. Hamalle and Hewitt made a contract for the sale by Mrs. Hamalle to Hewitt of the property she owned in the Arlington Hotel and her interest in the lease for $450 in cash and the satisfaction of a debt of some $60 she owed Hewitt. A bill of sale was executed January 3, 1898, and the money was paid. The bill of sale included the piano. Hewitt then took possession of the hotel, and another daughter, Mrs. Burton, became landlady, Mrs. Hewitt being a confirmed invalid. Mrs. Hamalle went to Decatur. The boarders were notified of the change and to thereafter pay board to Hewitt or Mrs. Burton, and did so. The sign only gave the name of the hotel and not that of the proprietor, and it was not changed. A month or six weeks after the bill of sale Mrs. Hamalle was called back to Peoria by the serious illness of her mother. She came back, and assisted in taking care of her mother for a few weeks, and then went away and was gone several months. She thén returned to Peoria, and rented a boarding house called the Ballance House, not far from the Arlington. Thereafter she was often at the Arlington, seeing and caring for her mother. Hewitt had some chickens in a place back of the Ballance House, and was often there caring for his chickens. Mrs. Hewitt was sometimes wheeled to the Ballance House in a chair, for a visit or change of scene. She finally died at the Arlington. The piano was all this time at the Arlington, and in the possession of Hewitt. Mrs. Hamalle, after the bill of sale, did not run nor have charge of the Arlington, and was only there when taking care of her mother, and never as proprietor. Some time after her mother’s death Mrs. Hamalle gave up the Ballance House, and (with her husband) rented the Prospect Heights House, and removed there. Her father gave up the Arlington, stored part of his personal property, and went to the Prospect Heights House to live with his daughter, Mrs. Hamalle, and took there with him part of his personal property, including his bedroom set, bed and bedding, some easy chairs, his clock, and this piano. The piano was placed in the parlor. It is clear Mrs. Hamalle never claimed to own it after the bill of sale was made, and never had any possession of it thereafter except such as she could be said to have of all the personal property her father took to her house when he moved there to live with her. The execution under which Gibson took the piano was for rent due from Mrs. Hamalle for the Ballance House, and that debt was not incurred till long after the piano was sold and delivered to Hewitt. There is no proof Mrs. Hamalle was insolvent when she sold the personal property at the Arlington to her father, or that she then owed any one except him. There is no evidence to cast doubt upon the good faith of the sale. When the indebtedness for the rent of the Ballance House was incurred by Mrs. Hamalle, the owner of the house could not have relied upon any supposed title of Mrs. Hamalle to the piano, for it was not in her possession, and she did not represent it to be hers. Before the constable took the piano Hewitt informed him it was his, and the constable was shown the bill of sale, which described it. Demand was made by Hewitt after the constable removed the piano and before this suit was brought.

The only thing defendant can rely upon is the fact that the piano was in Mrs. Hamalle’s house and that she had once owned it. The naked principle defendant must rely upon is that if an old man, after the death of his wife5 breaks up housekeeping, and goes to live in the home of his daughter or any other person, and takes along some of his household furniture, if any article he so takes with him had once been the property of his daughter or landlady, and had been bought by him and paid for, and the possession duly and openly taken, yet by so removing such property to his new home with his daughter or landlady, he thereby so puts it into her possession that it becomes subject to her debts. We think such is not the law under the facts appearing in the record before us, and that the verdict ought not to stand. The instructions given for defendant were mere abstract propositions of law, and also stated too strongly the law applicable to this case.

The judgment is reversed, and cause remanded for a new trial.