Pogue v. Rowe

86 N.E. 207, 236 Ill. 157

• Court: Illinois Supreme Court
• Decided: October 26, 1908
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the court:

When the property was transferred to Pogue there was no attempt to comply with the so-called “Bulk Sales act.” (Laws of 1905, p. 284.) The court held the transfer to Pogue to be void on account of this non-compliance. This view is erroneous. That act is unconstitutional. We have so held since this case was tried in the county court. Off v. Morehead, 235 Ill. 40.

The court also held that,. irrespective of that statute, Pogue did not obtain, by virtue of the assignment, any title to the property which would enable him to maintain a suit in replevin against the constable. This, also, was erroneous. The court seems to have proceeded on the theory that a valid common law assignment for the benefit of creditors cannot'be made under the law of this State as it now exists. The National Bankruptcy act of 1898 suspended the statute of this State in reference to voluntary assignments for the benefit of creditors, (Harbaugh v. Costello, 184 Ill. 110,) and the debtor may malee a common law assignment for the benefit of his creditors, which is valid so far as the statutes of this State are concerned. (Howe v. Warren, 154 Ill. 227; Thompson Co. v. Whitehed, 185 id. 454.) As the statute in reference to voluntary assignments is suspended, the common law assignment is in nowise affected by that law. If the common law assignment should be attacked by a proceeding under the Bankruptcy law'a question not here presented would arise. The assignment passed the title of the property to Pogue, and he could maintain replevin for the same as against the constable levying execution thereon. Kimball v. Mulhern, 15 Ill. 205; Nimmo v. Kuykendall, 85 id. 476.

The court also erroneously held that Pogue could not maintain a replevin suit because he had failed to make demand upon the constable for the return of the property before instituting the suit. Pogue was in possession of the property and had the legal title thereto and the goods were taken from him by an execution against Clausen. Under these circumstances Pogue could maintain replevin without making a demand. Tuttle v. Robinson, 78 Ill. 332.

The transaction was not tainted with fraud. The conveyance to Pogue was made in good faith for the benefit of the creditors of Clausen, and Pogue was actually in possession of the property long prior to the issuance of the execution.

The judgment of the county court will be reversed and the cause will be remanded to that court for further proceedings consistent with the views herein expressed.

Reversed and remanded.