Brown v. Riley

Walker, J. The first question presented by this record is whether the sale of the property in controversy was fair and bona fide. The evidence tends to show that Gibney had previously executed a mortgage on the property to Moony, for the sum of three hundred and sixty dollars. And appellee purchased the property of Gibney, and he gave his note to Moony for two hundred and seventy-five dollars, and was to pay Gibney twenty-five. The property was delivered to appellee on the day of its sale, and remained in his possession from that time until the day upon which it was seized on execution. On that day, appellee employed Gibney to haul for him a load of wood with the wagon and team, and while in his possession the levy was made. The execution bears date the 26th of February, 1858, and was placed in the hands of the officer on tfie day following, and the levy was made on the 8th day of March, 1858. There was some uncertainty, from the evidence, when the sale was made to appellee. Gibney testified that it was on the 24th day of February, 1858, while another witness testified that he heard when the levy was made, which was four or five days after the sale. Moony also testified that the sale was made some time in February, and might have been on the 24th day. Fitzgerald testifies that he was present at the sale of the property in February. If the sale and delivery was made before the execution came to the hands of the officer, there can be no doubt of its validity unless it was impeached for fraud. There is evidence in the case, justifying the jury in finding, that it was made before the execution became a lien. In case of such a conflict of evidence, it is for the jury to determine to which they should give the preponderance, and the court will not disturb the finding unless it is manifestly against the weight of evidence. Whilst a sale of personal property, without a delivery and change of possession, is fraudulent as to subsequent purchasers and creditors, if the sale is made in good faith, for a sufficient consideration, and possession is taken by the purchaser, it is valid to pass the title against all creditors not having a lien upon it. And a loan of the property by the purchaser to the seller, for a temporary purpose, or the employment of the seller to use the property in the pursuit of the business of the purchaser, will not avoid the sale, and render it liable to sale on execution issued after the purchase. It may be a circumstance to be taken into consideration by the jury, that the seller is subsequently found with its' possession, and it is for them to determine whether such possession is bom fide, or is only colorable. In this case, there was evidence to justify the jury in finding that Gibney was in the employment of appellee and using the property in his business, and that the possession of the property was in appellee. To impeach a sale of property as fraudulent, as to purchasers and creditors, it is necessary to show that both the vendor and purchaser intended to hinder and delay creditors in the collection of their debts. It is not enough that such was the design of the seller, unless the purchaser participated in or had notice of such design at the time of the sale. Ewing v. Runkle, 20 Ill. R. 448. Whether such was the design of the parties to this transaction, was a question of fact for the determination of the jury, from all the circumstances in evidence on the trial, and they were justified by the evidence in finding as they have done. Even if the mortgage made by Gibney to Moony was fraudulent, and made to hinder and delay Gibney’s creditors, a bona fide purchase of the property by appellee would not be affected by that fraud. To charge him with it, he should have had notice that it was executed for that purpose; and the jury could not infer from the mere fact that the mortgage had been so made, that the appellee was a party to or had notice of it. Such a notice should be established by other evidence. And if it were conceded that the mortgage was fraudulent, there was no evidence that appellee was either a party to the fraud or had any notice of it. There is no error perceived either in the giving or refusing the various instructions asked in the cause. Nor do we see any error in the modifications which were made to others before they were given. The instructions fairly presented the law applicable to the evidence in the case, and the evidence justified the verdict. The judgment of the Circuit Court is affirmed. . Judgment affirmed.