Fikes v. Manchester

Citations

• 43 Ill. 379

Syllabus

<p>1. Mortgagee of chattels—claiming possession must show himself entitled to. A mortgagee of personal property claiming possession, must show himself entitled to it by the terms of the mortgage, and if that provides for possession remaining with the mortgagor until the happening of a default, the mortgagee must show such default.</p> <p>2. Same—what will he considered prima facie right of possession. In an action of trover brought against a mortgagee for the conversion of the property, where the note, to secure which the mortgage was given, had matured before suit brought, and the property had passed into the possession of the mortgagee, the production of such mortgage and note uncanceled by the mortgagee, is prima facie evidence of his right to the possession.</p> <p>8. Mortgagor—of attempt hy, to impeach the consideration—what facts deemed material—of which he must make proof. And in such case, where the mortgagor sought to impeach the consideration by showing, that the note was given for a less sum of money, and that it was advanced to the mortgagor to be invested for the mortgagee,—held, that the due application of the money was a material fact to be established in order to defeat the prima facie right of possession in the mortgagee, and that the burden of making such proof devolved upon the mortgagor.</p>