Stephenson v. Browning

Citations

• 48 Ill. 78

Syllabus

<p>1. Chattel mortgage — execution liens. Where a debtor executed a mortgage on chattels to secure a debt, and, by the terms of the instrument, was authorized to retain possession of the property until the 1st of July, lSGI, but it was acknowledged before a justice of the peace, in a different justice’s precinct from that in which the mortgagor resided, and was never recorded; and it appeared that an execution was issued against the mortgagor, and placed in the hands of a constable, on the 12th of June, of that year: Held, that the execution became a prior and better lien on the property, inasmuch as the mortgage, although binding on the parties to it, was fraudulent in law, as to creditors and purchasers, and the property could be seized and sold on the execution.</p> <p>2. Replevin—levy under an execution. Where, in such a case, the constable made a levy on the mortgaged property, and the mortgagee brought replevin for its recovery, the constable may successfully defend under the execution and levy. Nor would the promise of the beneficial plaintiff, that if the mortgagor would delay, for a specified time, in reducing the property to possession, he would pay his debt, being without consideration, release or discharge the lien of the execution.</p>