Wilson v. Rountree

Citations

• 72 Ill. 570

Syllabus

<p>1. Chattel mortgage—;failure of mortgagee to exercise Ms right of election to declare a forfeiture, does not release the lien. Where a chattel mortgage provides for the property remaining in the possession of the mortgagor until the maturity of the mortgage debt, unless such property shall be in danger of being levied on, etc., in which case the mortgagee shall be entitled to and may take possession, etc., the right thus conferred upon the mortgagee is a mere right of election, and his failure 'to exercise it can not, in the least, affect other parties, or release the lien of the mortgage.</p> <p>2. Same—permitting possession to remain with mortgagor—when fraudulent and when not. Where the mortgagee of personal property permits the possession to remain with the mortgagor after his failure to comply with the express terms of the mortgage, it has been held to be a fraud per se, and not subject to explanation; but such is not the case where the mortgagee suffers the property to remain in the hands of the mortgagor when he has a mere election to declare a forfeiture. In the one case the forfeiture is absolute, in the other it depends upon the pleasure of the mortgagee.</p>