Sondheimer v. Graeser

Mr. Justice Wilkin delivered the opinion of the court: The only question in this case is whether the chattel mortgage under which appellees claim is valid, and it is questioned upon no other ground than that the holder of it failed to take possession of the property at the maturity of the secured debt. It has been often held by this court, that as between the mortgagee of chattel property and bona fide purchasers after maturity, or creditors, the mortgagee must take possession within a reasonable time after default. The rule, however, has no application between the mortgagee and mortgagor, or a purchaser from the latter before maturity. (Arnold v. Stock, 81 Ill. 407; Sumner v. McKee, 89 id. 127.) It cannot be seriously contended that, in view of these latter authorities, the parlor frame company could be heard to deny the validity of the mortgage in question, as against it, because of a failure on the part of the mortgagee to seize the property upon maturity of the last note falling due. It certainly occupied no better position in that regard than did the mortgagor to whose rights it succeeded before maturity and merely by its corporate organization. As to it the case is, on principle, not unlike Sumner v. McKee, supra. The Appellate Court, after the foregoing careful statement of the facts and circumstances of the case, say: “In view of these facts it may well be said that the appellants were, for all practical purposes, the Gassmann Parlor Frame Company, and so stood in no different relation to the mortgagee than did that company." We think this conclusion is fully sustained by the evidence. The reason upon which the rule announced in Reed v. Eames, 19 Ill. 594, and later cases, is based does not apply as between these parties. We think the Appellate Court properly sustained the validity of the mortgage, for the reason that appellants, in fact, occupy the same position as that of a mortgagor or one purchasing from him before maturity. The fact that E. Sondheimer aided the parlor frame company in its efforts to prevent a foreclosure of the mortgage upon maturity of the first two notes, as stated in the opinion of the Appellate Court, at least strengthens the view that appellants were the real parties in interest, and in no prdper sense innocent third parties. We think the Appellate Court also properly disposed of the cross-errors assigned by appellees. Judgment affirmed.