Bushnell v. Wood, 85 Ill. 88 (1877)

Jan. 1877 · Illinois Supreme Court

85 Ill. 88

Alonzo L. Bushnell et al. v. Herman K. Wood.

1. Chattel mortgage—whether fraudulent, a question of fact. Where a chattel mortgage is regularly executed, acknowledged and recorded before the issue of an execution, it will give a prior lien, and whether it is fraudulent as to creditors is a question of fact for the jury, under proper instructions.

3. Evidence—res gestee. Declarations made by the mortgagor at the time of executing a chattel mortgagé, are a part of the res gestee, and admissible in evidence.

Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.

Messrs. Hughes & McCart, for the appellants.

Messrs. Stevenson & Ewing, for the appellee.

Mr. Justice Scott

delivered the opinion of the Court:

The chattel mortgage given by Mrs. D. K. Dodge to plaintiff, covering the property in controversy, was regularly executed, acknowledged and recorded, and whether it was fraudulent as to creditors was a question of fact, upon which the evidence is quite conflicting, "and it was, therefore, a proper case for the consideration of a jury. Under instructions from the court sufficiently accurate, the jury found the mortgage was not fraudulent, and being older than the execution under which the property was seized by defendants, it was the prior lien and must prevail.

Declarations made by the mortgagor at the time she was executing the mortgage, were a part of the res gestee, and were admissible in evidence.

That the property was in possession of defendants we do not entertain the slightest doubt, under the evidence in the record.

The judgment will be affirmed.

Judgment affirmed.