Elliott v. Emerson Piano Co.

Mr. Presiding Justice Freeman delivered the opinion of the court. The contract with Boberts was in form and effect a promissory note and chattel mortgage. It provided that the “ instrument is and shall remain the property of the said Emerson Piano Co.” until all the payments for it should be made; but it also provided that when they were made the “ full, absolute and complete title ” should vest in the purchaser. It contemplated immediate delivery of the piano to Boberts and allowed him its possession and use. It permitted appellees to “ retake possession ” or to enforce “ payment and collection ” of the amount of the purchase price at their option. The language of the contract indicates a sale and delivery of the piano, and although the parties agreed as between themselves that the title should remain in appellees, as to third parties without statutory or other notice it vested immediately in the purchaser. Blatchford v. Boyden, 122 Ill. 657, 668. The statute provides that “ no mortgage, trust deed, or other conveyance of personal property, having the effect of a mortgage or lien upon such property, shall be valid as against the rights and interests of any third person unless * * * the instrument shall provide for the possession of the property to remain with the grantor, and the instrument is acknowledged and recorded as hereinafter directed, and every such instrument shall, for the purposes of this" act, be deemed a chattel mortgage.” Rev. Stat., Chap. 95, Sec. 1. This contract must “ be deemed a chattel mortgage.” It was not acknowledged and recorded, as required by the statute, and was invalid as against third parties. It is urged, however, that whatever right or title Boberts had under the contract was released and canceled Bovember 9th prior to the distraint, and that “ the piano became the property of the appellees.” There is testimony to the effect that Boberts expressed a desire that appellees should take the piano back and cancel the contract. The memorandum of Bovember 9th, entered on appellees’ books, is as follows: “ Called and said could not make payment on account of sickness in family, and would like to keep piano. Arrangements made to leave piano for few months—say about January 21, 1897.” This does not show a cancellation of the contract, nor any surrender on the part of Roberts. There was here no “ legal sale and delivery ” to appellees as in Howdyshell v. Gary, 21 Ill. App. 288, 291, cited by appellees’ counsel, and there was no change in the relation of the parties nor in the possession or title to the piano. The agreement to return it or to receive it back and cancel the contract, if so made, was still unexecuted. The provisions of Sec. 16, Chap. 80, Rev. Stat., providing that “ in no case shall the property of any other person,” although found on the premises, be liable to seizure for rent, are not, therefore, applicable. For the reasons indicated, the judgment of the County Court must be reversed and the cause remanded.