William Deering & Co. v. Washburn

Reeves, J. The contention of the appellant is clearly stated in this language: “An agreement in or outside a chattel mortgage, whereby the mortgagee authorizes the mortgagor to sell a portion of the property covered by the chattel mortgage, for the sole and exclusive benefit of the mortgagee in payment of the debt secured, the mortgagor to have no beneficial interest in the proceeds of sale, does not vitiate the mortgage per se, as between mortgagee and third parties, but if entered into in good faith and honestly carried out, will be upheld.” The case of Goodheart v. Johnson, 88 Ill. 58, is cited in support of the proposition submitted. It must be conceded that on first reading, the opinion in this case seems to support the proposition of appellant. However, it will be noted that the permission given by the mortgagee to the mortgagor to sell a portion of the mortgaged property, and turn over the- proceeds to the mortgagee, was not given at the time the mortgage was made. Hence, the mortgage when made was a valid one. The court held that the subsequent arrangement by which consent was given by the mortgagee tó the mortgagor to sell the property at public or private sale, the proceeds of such sale to go to the mortgagee, did not make the mortgage fraudulent in law and void as to creditors. The fact of such consent taken in connection with the sales made in pursuance of such consent, the court say, might rightfully be considered in determining the question whether the mortgage was originally made to hinder and delay creditors. In this case it was agreed that at the time the chattel mortgage was made, there was an understanding by which. Miller was to sell at retail in the usual course of business and at its market value any of the property mortgaged, the entire proceeds of such sales to be turned over to the mortgagee and the amount credited on the indebtedness to secure which the mortgage was given. As we understand the decisions of our Supreme Court, such an understanding or agreement entered into at the time the mortgage is made renders the mortgage fraudulent in law and void as to creditors. Davis v. Ransom, 18 Ill. 396; Barnet v. Fergus, 51 Ill. 354; Dunning v. Mead, 90 Ill. 376; Greenebaum v. Wheeler, 90 Ill. 296; Huschle v. Morris, 131 Ill. 587. The exhaustive argument furnished ns by appellant’s counsel, urges with much force and reason in favor of sustaining the validity of the mortgage in question, fortified by the decisions of the courts of last resort of other States; but in the face of the decisions of the Supreme Court of this State we feel compelled to hold that the decision of the question by the Circuit Court was correct. The judgment of the Circuit Court is affirmed. Judgment affirmed.