Miller v. Kirby

Citations

• 74 Ill. 242

Syllabus

<p>1. Trespass—title and possession necessary to maintain. In trespass to personal property, the plaintiff must show that when the injury was committed he had an actual or constructive possession of the goods, and also a general or qualified title therein: but it is well settled that actual possession, though without the consent of the real owner, or even adverse to him, will be sufficient, as against a wrong-doer, or one who can show no better title.</p> <p>2. If one gives a deed of trust upon goods to secure the payment of money, and it is provided therein that he shall have full right to carry on the business of the store in his own name, make sales and receive the proceeds, and have the management of the business, such party, being in the actual possession, can maintain trespass for the taking of any of the property, although the trustee also may have had a constructive possession for the purpose of seeing that the proceeds of the sales were applied on the debt.</p> <p>3. Fraudulent conveyance—sale-on credit, etc. In case of an absolute and unconditional sale of goods, the fact that the vendor was indebted at the time, that the sale was on a credit, and that the notes taken for the unpaid price were to be used in the payment of his debts, will not establish fraud in the sale as to creditors.</p> <p>4. Same — party indebted may sell. A party, though in debt, may sell his property to whom he pleases, if no lien exists to prevent it, and if the transaction be an honest one, made in good faith, and for an adequate consideration, it matters not how many creditors may thereby be prevented from reaching the property.</p> <p>5. Same —purchaser must be guilty of fraud. It is not sufficient to vitiate a sale of property that it was made by the vendor to hinder, delay or defraud his creditors, but the purchaser must also have participated in the fraudulent intent or purpose.</p> <p>6. Instructions — assuming facts. If an instruction assumes the existence of facts not contr