Ketchum v. Watson, 24 Ill. 591 (1860)

April 1860 · Illinois Supreme Court

24 Ill. 591

Joel B. Ketchum, Plaintiff in Error, v. Michael Watson, Defendant in Error.

ERROR TO TAZEWELL.

To pass the title to personal property, as regards third persons, there must be a change of possession, so that others may not be deceived and defrauded by the apparent ownership of one, while the title is really in another.

This was an appeal, from a trial of the right of property-before a justice of the peace, which was tried before Harriott, Judge, in the Circuit Court of Tazewell county.

It appears, from the evidence, that the property in question, a horse, was levied on by the constable, as the property of one George Outlaw, in whose possession it was, under an execution against him, in favor of Ketchum, the plaintiff in error.

Watson, the defendant in error, claimed the horse as his property. It appears further, that Watson sold the horse to Outlaw for $80, took his note for the amount, and delivered the property. That afterwards, Outlaw not being able to pay the note, it was agreed that the sale should be rescinded, that Watson should destroy the note, and Outlaw should keep the horse, and if he paid Watson $80 by the first of February, following, then Outlaw was to own the horse, but if he did not pay by that time, then it was to be Watson’s property, and at his risk. Judgment in favor of Watson.

S. D. Puterbaugh, for Plaintiff in Error.

Roberts & Ireland, for Defendant in Error.

Breese, J.

The sale to Outlaw, of the horse in question, made in August, 1859, was perfected by delivery to him. His title was then complete. The resale by Outlaw to Watson, in October following, was not perfected by delivery, nor was there any change of possession; the title, therefore, did not pass. To pass the title as between third persons, there must be a change of possession, so that others may not be deceived and defrauded by the appearance of ownership in one, while the title is really in another. Thompson v. Yeck, 21 Ill. R. 78. The whole transaction is in fraud of the chattel mortgage act. The judgment is reversed, and the cause remanded.

Judgment reversed.