Webber v. Mackey, Nisbet & Co.

Green, P. J. The amended replication to which the final demurrer was sustained, in substance sets up that the property claimed by defendants was levied upon by said Jones by virtue of nine attachment writs in favor of creditors of Thomas J. Crawford, the affidavits for which writs charged that he had,'within two years prior to the filing thereof, fraudulently conveyed said property so as to hinder and delay his creditors; that the conveyances were two chattel mortgages from him to Mackey, JSTishet & Co., and Hinkle, Mishet & Co., conveying to them the property replevied, and this was the only title said Jones had to said property, and that Crawford and said firms made and entered into said mortgages for the purpose of hindering and delaying the other creditors of Crawford; that Jones by virtue of said writs seized and took the property from the possession of said firms and retained such possession until after the execution of the replevin bond, when said property was replevied by Tanner, United States Marshal, and delivered to said firms by virtue of the writ of replevin in the declaration mentioned; that afterward, at the April term, 1885, of the Franklin Circuit Court, the attachment suit was heard and determined, and said firms appeared by counsel, and in the name of said Crawford litigated their i right to said property as such mortgagees, and the question litigated and defense made was as to the validity of the mortgages and the rights of the mortgagees thereunder; and that the title of said mortgagees to said property was by said court fully adjudicated and determined in their favor; that said attaching creditors appealed from said judgment to the Appellate Court for the fourth district, in which court said firms again appeared by counsel and litigated their claim to said property as mortgagees; that at the August terra, 1885, of the Appellate Court, said judgment was'reversed and cause remanded; that said attachment cases were placed on the docket of said Circuit Court for trial in pursuance of the remanding order, and at the April term, 1886, said firms again appeared by counsel and filed their motion in writing to be made defendants and for leave to interplead under the statute, which motion was allowed, and said firms thereby became defendants, and leave was given them to file their respective interpleaders, but therein they made default, whereupon final judgments were rendered by said court awarding special executions in each of said attachment suits for the sale of said property, and that afterward such proceedings were had. in said Circuit Court as resulted in the court holding said mortgages void as against the attachment creditors of Crawford. The replication then concludes: “Wherefore, plaintiff avers, the merits of the title of the said Mackey, ifisbet & Co. and Hinkle, Hisbet & Co. to the goods and chattels in said declaration and plea mentioned, have been fully adjudicated by the said Circuit Court of Franklin County since the making of the writing obligatory in plaintiff’s declaration mentioned; all of which plaintiff is now ready to verify,” etc. The right to lile the plea to which this amended replication was interposed is given by statute, when the merits of the case have not been determined in the trial of the action in which the bond was given, and if, supported by the evidence, such defense is sufficient to defeat a recovery of more than nominal damages in a suit on a replevin bond. By the second amended replication plaintiff attempted to set up a former adjudication .against the mortgagees’ title to the replevied property, that would estop them thereafter to assert such title, and again litigate that question in any subsequent controversy wherein it arose; but in our judgment the replication as amended was fatady defective, and the demurrer to it was properly sustained. All that part of said replication up to and including the averment that said attachment cases were re-docketed in the Franklin Circuit Court, discloses no other adjudication in the Circuit Court than that determining the title to the mortgaged property to be in mortgagees; and the remaining averments, that said firms again appeared by counsel and filed their written motion to be made defendants, and for leave to interplead, and they thereby became defendants, and leave was given them to file interpleaders, but therein they made default, are, in legal effect, admissions that said firms, after the re-docketing of said cases, had ceased to appear by counsel, and in the name of Crawford litigate their right to said property as mortgagees, did not become defendants, and did not avail themselves of the permission' given to file interpleaders; hence the controversy was then left between the plaintiffs in attachment and Crawford, and his intent in conveying the property, and not the intent of said firms in taking and accepting said notes and mortgages, became the issue. Unless the mortgagees did become defendants and file interpleaders, no issue as to their title could be determined; nor was their title necessarily involved in the question whether or not Crawford had been guilty, as charged in the affidavit, of the act of fraudulently conveying said propeity within two years, so as to hinder and delay his creditors. His fraudulent intent, unless participated in by the mortgagees, did not affect their title or invalidate the mortgage. Herkelrath et al. v. Stookey, 63 Ill. 486; citing and approving Hessing v. McCloskey, 37 Ill. 351; Ewing v. Runkle, 20 Ill. 448. The averment that the merits of the title of said firms to the property attached have been fully adjudicated by said Circuit Court, is a mere conclusion of the pleader, negatived by the averments which precede it in said replication. As we construe this amended replication, it does not aver that in the final litigation of the attachment cases, the mortgagees appeared by counsel -and in the name of Crawford litigated their rights to said property, or appeared and became defendants, or that their title to said property was in issue, or was finally adjudicated and determined against them. Hence the cases of Cole v. Favorite, 69 Ill. 457, and Bennitt et al. v. The Wilmington Star Mining Co., 119 Ill. 9, cited on behalf of appellant, can have no application and are not in point; but this case, so far as the amended replication and its sufficiency is concerned, comes within the operation of the rule announced in numerous decisions, that the fundamental principle upon which the former adjudication of a question is allowed as an estoppel, is that justice and public policy alike demand that a matter consisting of one or many questions, which has been adjudicated by a court of competent jurisdiction, shall be deemed' finally settled in any subsequent litigation between the same parties, where the same question or questions arise; these requisites to a sufficient defense of estoppel by former adjudication, are not averred in said amended replication, as we have already stated, and it was obnoxious to the demurrer. Hanna v. Read et al., 102 Ill. 596; The Riverside Co. v. Townsend et al., 120 Ill. 18. The objection to the admission of said chattel mortgages in evidence, as stated in appellant’s brief, is, that they were acknowledged before a justice of the peace in Franklin county and were offered in evidence in Saline county, and had no certificate of magistracy attached. It appears, however, possession of the mortgaged property was taken immediately by the mortgagees at the time the mortgages were executed, acknowledged and delivered to them. It was not, therefore, necessary to acknowledge and record the instruments, or attach such certificate to make them competent evidence. Wilson v. Pearson, 20 Ill. 81; Chipron v. Feikert, 68 Ill. 284. Plaintiff’s instructions, 9th, 10th, 11th, 12th and 13th, were properly refused. The 9tli states that said chattel mortgages could not be considered by the jury as evidence without a certificate of magistracy being attached. The 10th asserts the law to be that all chattel mortgages before they can affect, the rights of third parties must be acknowledged before a justice of the peace in the precinct where the mortgagor lives and be entered in his docket, or if there is no justice residing in the precinct, then such mortgages must be acknowledged before the county judge of the county. Under the facts these instructions are improper. The mortgagees took immediate possession of the property as before stated, and it was not essential to the validity of the mortgages that they should have been so acknowledged. The lltli instruction is to the effect that “ if the jury believed the chattel mortgages were made to hinder and delay the other creditors of the mortgagor, and such fact was known by the mortgagees, then they must find for the plaintiff.” As a proposition of law we think the instruction incorrect, aside from the objection that it does not require the jury to base their belief on the evidence. “The 12th states the law to be,that a failing debtor can not now prefer one creditor in preference to another by chattel mortgages, by turning over to one of his creditors his entire property under a chattel mortgage, when his entire property, so mortgaged, is greatly in excess of the debt secured by such mortgage.” We do not so understand the law to be. The 13th instruction is subject to the same objection as the 10th. The instructions given on behalf of defendants, taken in connection with those given for the plaintiff, are not subject to serious objection. The suggestion on behalf of appellant, that the jury should have assessed, either the amount due on the attachment writs as the measure of damages, or nominal damages only, may be conceded, and we think, under the evidence, $260 damages were excessive, but the defendants alone have the right to complain of the verdict and judgment for that reason. The only other error assigned we deem it necessary to refer to, is the overruling plaintiff’s motion for a new trial; and, after what has been said by us, only one question upon that point remains undisposed of. Was the verdict of the jury justified by the evidence? After a careful examination of the evidence in the record we have reached the conclusion, which the jury evidently arrived at, that the mortgagees, in taking the notes and chattel mortgages from Crawford, acted with an honest purpose to secure and provide for the payment of debts then du.e them, and without intent to hinder cr delay the other creditors of Crawford, and that the amount in value of the mortgaged property was not greater than the mortgagees might rightfully take to secure the payment of the debts due them, nor so greatly in excess of the amount of such debts as to justify suspicion of a fraudulent intent. We perceive no error requiring us to reverse the judgment and it is therefore affirmed. Judgment affirmed.