Sidwell v. Lobly

Walker, J. The refusal, of the court below, to give defendant’s instruction, is, among other matters, assigned as error. It is tMs: “ That if the jury believe that plaintiff delivered up the property in controversy to defendant, with his permission to pay the amount advanced, and redeem the property in a given period, and said period elapsed without such payment, then defendant’s right of ownership was. absolute on such failure.” Whilst the bill of exceptions fails to state that all of the evidence in the case is embodied, and we are therefore precluded from examining the question, whether the court erred in overruling the motion for a new trial, because the verdict is alleged to be contrary to the weight of evidence, nevertheless we see that there was evidence in the case, upon which to base this instruction. Miller testified, that the property was given up by defendant in error, to plaintiff in error, with the agreement, that if the former brought the money iso the latter within a month, then the property was to be that of defendant in error. If there was an actual delivery of the property, on the payment of the money, by plaintiff in error, in satisfaction of the execution, with the design that it should constitute a sale, then it was sufficient to pass the absolute title. This is true not only as between themselves, but as to all persons not having liens upon the property. Or if it was designed to be a complete sale and nothing more remained to be performed, but a delivery of the property, then as between the parties, the title passed, and vested in the purchaser. Wade v. Moffitt, 21 Ill. 110; Howard v. Babcock, ib. 295. Had the stock, under this arrangement, died before the time for payment, by defendant in error, had arrived, would any one doubt that plaintiff in error would have been compelled to sustain the loss ? If the evidence of Miller is true, and it stands so far as we can see uncontradicted, the property was vested in plaintiff in error, conditionally, if it was redeemed, and absolutely if it was not, at the time specified. There was certainly evidence in the case tending to show that it was a sale, to become absolute upon a failure to pay the money, and there was evidence that it was not paid. This clearly required the giving of this instruction. The judgment of the court below is reversed, for this error, and the cause is remanded. Judgment reversed.