Moore v. Montelius

Appellate Court of Illinois

Moore v. Montelius

29 Ill. App. 197, 1887 Ill. App. LEXIS 412

DecidedOctober 3, 1888

StatusPublished

This text of 29 Ill. App. 197 (Moore v. Montelius) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moore v. Montelius, 29 Ill. App. 197, 1887 Ill. App. LEXIS 412 (Ill. Ct. App. 1888).

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Opinion

Pleasants, J„

One B. F. Clark having been tenant of appellee for two years, on March 1, 1884, they made an agreement in writing whereby appellee bought certain of his live stock then on the premises, and was to furnish more, with other things mentioned, and Clark was to take care of it and of the farm and “ have for his services” one-lialf the proceeds of sales of their increase and product, all of which were to he made by or under the direction of appellee.

In December, 1886, appellant, a constable, under an execution issued by a justice of the peace against Clark, levied on and removed from the place twenty-one head of cattle, which appellee replevied and recovered by this action.

The only defense attempted to be set up by the evidence was justification under the writ. It was contended that the sale to appellee was void because possession of the property was left unchanged in Clark ; and that four of those replevied were calves of cattle included in that sale.

Several points are made on the rulings of the court below, among which was an instruction for the plaintiff to the effect that if, at the time of the sale, the property was exempt from execution against Clark, the sale could not be fraudulent as against his creditors.

While we are not to be understood as approving this instruction in its application, under the statute then in force, to property not specifically exempted and in respect to which no steps had been taken to exempt it, we affirm the judgment for the reason that the evidence fails to show the plaintiff in the execution was a creditor of Clark when the sale was made. It clearly indicates that the indebtedness all arose afterward. In the like case of Ives v. Hulce, 14 Ill. App. 389, this court decided that “ such transactions are void only as to prior, and not as to subsequent creditors,” citing Wooldridge v. Gage, 68 Ill. 159, in which other decisions of the Supreme Court to the same effect are referred to.

Some "other questions are made in the argument, but none that interfere with the operation of this rule. We therefore deem it unnecessary to consider them.

Judgment affirmed.

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Pleasants, J„

One B. F. Clark having been tenant of appellee for two years, on March 1, 1884, they made an agreement in writing whereby appellee bought certain of his live stock then on the premises, and was to furnish more, with other things mentioned, and Clark was to take care of it and of the farm and “ have for his services” one-lialf the proceeds of sales of their increase and product, all of which were to he made by or under the direction of appellee.

In December, 1886, appellant, a constable, under an execution issued by a justice of the peace against Clark, levied on and removed from the place twenty-one head of cattle, which appellee replevied and recovered by this action.

The only defense attempted to be set up by the evidence was justification under the writ. It was contended that the sale to appellee was void because possession of the property was left unchanged in Clark ; and that four of those replevied were calves of cattle included in that sale.

Several points are made on the rulings of the court below, among which was an instruction for the plaintiff to the effect that if, at the time of the sale, the property was exempt from execution against Clark, the sale could not be fraudulent as against his creditors.

While we are not to be understood as approving this instruction in its application, under the statute then in force, to property not specifically exempted and in respect to which no steps had been taken to exempt it, we affirm the judgment for the reason that the evidence fails to show the plaintiff in the execution was a creditor of Clark when the sale was made. It clearly indicates that the indebtedness all arose afterward. In the like case of Ives v. Hulce, 14 Ill. App. 389, this court decided that “ such transactions are void only as to prior, and not as to subsequent creditors,” citing Wooldridge v. Gage, 68 Ill. 159, in which other decisions of the Supreme Court to the same effect are referred to.

Some "other questions are made in the argument, but none that interfere with the operation of this rule. We therefore deem it unnecessary to consider them.

Judgment affirmed.

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29 Ill. App. 197, 1887 Ill. App. LEXIS 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-montelius-illappct-1888.

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