Garrettson v. Pegg

Citations

• 64 Ill. 111

Syllabus

<p>1. Chattel mortgage—whether valid—presumptions. In an action involving the validity of a chattel mortgage, the jury were instructed that, if they believed, from the evidence, “that said chattel mortgage was duly executed and recorded according to law, and that the samé purports a consideration, then the presumption of law is, that the same is dona fide and valid:” Held, there being evidence that the mortgage was fraudulent, that the instruction was objectionable on account of being calculated to mislead the jury—it leaving them uninformed in what sense the phrase “presumption of law” was used, whether a conclusive or disputable presumption was intended.</p> <p>2. Same—of sales dy the mortgagor. The jury were also instructed, if the mortgagor sold a portion of the mortgaged property to different individuals and appropriated the proceeds to himself, that those facts could not affect or prejudice the rights of the mortgagee, under the mortgage, as to property contained in the mortgage and not so disposed of by the mortgagor: Held, the instruction was misleading unless qualified by a proviso that the sales referred to were made without the knowledge of the mortgagee, for if made with his knowledge and consent for the benefit of the mortgagor, that fact, though not of itself sufficient to avoid the mortgage as to the property unsold, would nevertheless be a circumstance which the jury might properly take into consideration in determining the question of good faith in making the mortgage, and, there being other circumstances tending to throw discredit on the mortgage, the instruction as given, that such sales did not affect the rights of the mortgagee in property unsold, should not have been given without explanation.</p>