Gaff v. Harding

Citations

• 48 Ill. 148

Syllabus

<p>1. Replevin—action of—will not lie except against a party who takes and detains. D executed his note, together with a chattel mortgage on certain property, to H, the possession of the property remaining with D, but which mortgage was never recorded. G, the sheriff, levied execution on the property in the hands of D, in favor of L, a judgment creditor of D, and thereupon D executed to G a delivery bond, with H, the mortgagee, as security, he, H, then turning the property over to the possession of D, to keep for him. While the property was thus situated, H, the mortgagee, sued out a writ of replevin against G, the sheriff. Held: That the action would not lie against the sheriff, the property being in the possession of D at the time the writ issued.</p> <p>2. Mortgage—unrecorded—no lien as against an execution creditor. That the mortgage, not having been recorded, constituted no lien on the property as against L, the execution creditor, he having no notice thereof.</p>