Bailey v. Godfrey

Citations

• 54 Ill. 507

Syllabus

<p>1. Trover—when it wül lie against a purchaser of chattels from a mortgagor. Although a mortgagee of chattels may never have had actual possession of the mortgaged property, the mortgage providing that the mortgagor might retain the possession, yet, where the mortgage also provides that, should the mortgagee at any time feel himself “ unsafe or insecure,” he may take immediate possession of the properly, wherever it can be found, a right to the immediate possession will accrue to the mortgagee at any time he may elect to assert it; so that if the mortgagor should sell the property, without the knowledge of the mortgagee, the latter may maintain an action of trover against the purchaser therefor.</p> <p>2. In this case the remedy was given against a purchaser, who bought the property from the mortgagor in a county other than that in which the mortgage was executed and recorded, to which it was removed from the latter county without the knowledge of the mortgagee. It was held, that whoever purchased from the mortgagor, took the property with constructive notice of the rights of the mortgagee.</p> <p>3. Same—extent of recovery in such case. In such case it is not essential to the right of recovery, that the mortgagee should show that other property embraced in the mortgage, .besides that in respect to which the action, was brought, was insufficient to satisfy the mortgage debt, or that he had been unable to reduce such remaining property to possession.</p> <p>4. Though the defendant may plead, in reduction of the mortgagee’s special interest in the property, that other property was embraced in the mortgage, which the mortgagee has reduced to possession, in reduction of his mortgage debt, the extent of recovery in such case being, the amount of the mortgage indebtedness.</p> <p>5. Burden op proof. In case the defendant pleads such matters in defense, the burden of proving them rests upon him.</p> <p>6. Question op law or pact. Whether a chattel mortgage is proved to h