Dunlap v. Epler & Callon

Citations

• 88 Ill. 82

Syllabus

<p>1. Chattel mortgage—-failure to take possession at time limited. If mortgaged chattel property is suffered to remain in the possession of the mortgagee beyond the time limited in the mortgage for his possession, it renders the mortgage fraudulent and void as to execution creditors of the mortgagor.</p> <p>2. Same—construed as to right of possession, as between mortgagor and mortgagee. A chattel mortgage, given to indemnify a surety, provided in the condition that, if the mortgagor should pay the note executed by him and the mortgagee to the payee by a day named, or pay whatever the surety might be obliged to pay, with interest, and if, in other respects, he should keep the surety harmless, etc., the same should become void, and that the mortgagor might retain possession of the chattels “until the day of payment, as aforesaid,” and “ at the expiration of said time of payment,” if the note was not paid, etc., he should deliver possession: Held, that the mortgagor was only entitled to retain possession until the day named for payment in the condition, and if retained after that time the property was liable to be taken on execution against him. Such a mortgage does not give the mortgagor the right to hold possession until the mortgagee is damnified as surety.</p> <p>3. Same—provision as to holding possession against mortgagee who is only surely. A chattel mortgage given to a surety of the mortgagor upon a note, may well provide that on failure of the mortgagor to pay the note at maturity, the mortgagee, without having suffered anything from his suretyship, may immediately take possession of the property, and appropriate it to the payment of the note, and if it does so provide, possession must be taken accordingly, or the property becomes liable to execution against the mortgagor.</p>