Rhode v. Matthai

35 Ill. App. 147, 1889 Ill. App. LEXIS 521

• Court: Appellate Court of Illinois
• Decided: December 24, 1889
• Status: Published

Opinion

Gary, P. J.

This case is nearly the converse of Spear v. Joyce, 27 Ill. App. 456. It is an attachment based upon the charge that the appellee had within two years fraudulently conveyed, etc.

He kept a saloon and the stock and fixtures were covered by chattel mortgages. He made sales from the stock in the ordinary course of business, necessarily with the knowledge) and implied, if not express, consent of the mortgagees. As to the stock, therefore, the mortgages were invalid as against creditors. Davis v. Ransom, 18 Ill. 398. But not as to the fixtures. Barnet v. Fergus, 51 Ill. 352.

The same consequence might follow as to a sale without a sufficient delivery. Schwabacker v. Rush, 81 Ill. 310. Constructive fraud, however, if there is in the mortgagor or vendor no fraudulent intent, in fact, is no ground for an attachment against him. Last case, and Shove v. Farwell, 9 Ill. App. 256.

The Superior Court was of this opinion, and there being no evidence of fraud in fact, instructed the jury to find for the appellee on the attachment issue. The judgment affirmed.

Judgment affirmed.