Hathorn et al. v. Lewis. horse power, and planing machine, tenoning machine, circular saw, upright saw, and all machinery, belonging to said planing mill, and machine shop, situate in said shops, or attached thereto, being in Lodi, on the north side of railroad track, between the residence of John Pickett, and the warehouse, owned by Solomon White, Kane county, State of Illinois. To have and to hold, all and singular the goods and chattels, hereinbefore granted, bargained, and sold unto the said party of the second part forever, said goods and chattels now remaining and continuing in the possession of the said party of the first part, in the said town of Virgil. Provided always, and these presents are upon these express conditions, that if the party of the first part, shall and do well and truly pay, or cause to be paid, to the said party of the second part, the sum of two thousand six hundred and thirtyseven dollars and forty-five cents, payable as follows: One note due and payable on the 9th of November, 1857, $315.38-100 dollars; one of two hundred and fortysix dollars, payable 26th day of November, A. D. 1857; one of one hundred and eght y-four dollars 81-100, payable December fifth, A. D. 1857; one hundred and fifty-two dollars and sixty-four cents, payable January nineteenth, A. D. 1858; one hundred sixteen dollars 38-100, payable January eighth, A. D. 1858; five hundred and forty-two dollars 50-100, payable March 8th, A. D. 1858; five hundred fortynine dollars 29-100, payable March 17th, 1858; four hundred and four dollars .24-100, payable 21st day of March, A. D. 1858; one hundred fourteen dollars .88-100, payable fifth day of April, A. D. 1858; then these presents and every matter herein contained, shall cease and be null and void. But in case default shall be made in the payment of said sum of money above mentioned, at the time above limited for the payment of the same, or any part thereof, it shall and may be lawful for the said party of the second part, to take possession of the said goods and chattels, wherever the same shall be, and to sell and dispose of the same for the best price which can be obtained therefor, at public vendue, or otherwise (giving six days' notice to the said party of the first part, of the time and place of such sale,) and out of the money to arise by such sale thereof, to retain the said sum of money above mentioned, and all charges for keeping said property, and of such sale (if so much there shall be), rendering the surplus money (if any there shall be) to the said party of the first part. And it is hereby agreed by and between the said parties, that in case the said party of the first part, shall sell, assign, or dispose of, or attempt to sell, assign, or dispose of any of said goods and chattels, or remove, or attempt to remove, from said county, any of said goods and chattels, or if the same shall be levied upon, or seized by virtue of any execution, writ, or attachment, or other process, against the said party of the first part, it shall and may be lawful for the said party of the second part, to take possession of the said goods and chattels, and sell the same, in the payment of the said sum of money, above mentioned, in the manner aforesaid. In witness whereof, the said party of the first part, has hereunto set his hand and seal, the day and year first above written. STATE OF ILLINOIS, KANE COUNTY. } G. W. ALEXANDER. [SEAL] This mortgage was acknowledged before me, by George Filed for record, October 24th, A. D. 1857, at 4 o'clock, P. M. To the offering of which chattel mortgage, in evidence, the defendants objected. Objection overruled. Hathorn et al. v. Lewis. The plaintiff offered as a witness, E. P. Robertson, who testified that he was a justice of the peace, in Virgil, in October last. This mortgage was acknowledged before me. I have no means of knowing whether it was executed before the acknowledgment. Alexander signed it before me. It was filled up at the time I first saw it. Jacob M. Armstrong. I know the parties to this suit. I have lived in Lodi two years. I know the store and goods mentioned in mortgage. Am clerk for Lewis. Lewis sold the goods mentioned in mortgage to George W. Alexander about the 22nd of October last. I was present at the time of the replevy. Same goods replevied as covered by mortgage. I heard of the sale by Alexander to the defendants. I was present when demand was made by Lewis of the defendants for the goods. It was about the 6th or 7th of December, on Wednesday, some three days after the sale to defendants. James Lewis and myself were with Seth Lewis. Mr. Seth Lewis came in and asked John Hathorn if he had bought the goods of Alexander. He said he had. He then asked if he knew that he had a mortgage. He replied that his brother had been to Geneva, and his lawyer, Mr. Mayborne, said the mortgage was not good. Lewis demanded possession. Hathorn said, you will have to get it by law, and the extent of the law. It was a very short time before that he had heard of it. That Alexander and defendant Hathorn were going in partners-that Hathorn heard of the mortgage and took in Heath. I had been clerk for Lewis. I owned the store when the sale was made to Alexander. The sale was on the 22nd day of October, 1857. Alexander went into immediate possession. Defendant Heath was his clerk. Alexander commenced selling goods at once, and kept right on selling like any other store, until sale to defendants. Plaintiff Lewis was in and about all the time. Stipulation between the parties: "It is stipulated and agreed, that the notes mentioned in the chattel mortgage from G. W. Alexander to said Lewis, dated October 23, 1857, were notes given by said Lewis and said Alexander, for goods, purchased by said Lewis before he sold out to said Alexander, and were the same as mortgaged and in the store at Lodi, at time of the making said mortgage, and that said Lewis was held as security on the same, and that Alexander has not paid said notes, and are the same notes as the notes described in the mortgage, and are given to pay the indebtedness originally contracted for said goods, mentioned in the mortgage. This stipulation to be used in each of the cases above entitled. Geneva, February 8th, 1858." Hathorn et al. v. Lewis. The jury rendered a verdict for the plaintiff for $425. Plaintiff remitted the $425 damages. Court overruled motion of defendants for a new trial. MAYBORNE & SMITH, for Plaintiffs in Error. W. B. PLATO, A. HERRINGTON, and B. C. COOK, for Defendant in Error. BREESE, J. Alexander had purchased the goods taken on the writ of replevin, of Seth Lewis, plaintiff in the action, and executed to Lewis a chattel mortgage in due form, to secure the payment of the notes which he had given to Lewis for the goods. The mortgage stipulates, that they should remain in Alexander's possession, in the same store in which they were when Lewis sold them to him, and it then provides that "in case the said party of the first part (Alexander), shall sell, assign or dispose of, or attempt to sell, assign or dispose of any of said goods and chattels, or remove or attempt to remove from said county, any of said goods and chattels, or if the same shall be levied upon or seized by virtue of any execution, writ or attachment, or other process against the said party of the first part, it shall and may be lawful for the said party of the second part (Lewis), to take possession of the said goods and chattels, and sell the same in the payment of the said sum of money above mentioned in the manner aforesaid," that is, at public vendue or otherwise, after six days' notice to Alexander. The plaintiff in error, bought the goods of Alexander, with full notice of this mortgage, and below their value. The mortgage was executed in good faith, and seems liable to none of the objections made to it, by the counsel for the plaintiff in error. But if it were so liable, if the mortgage was not properly acknowledged and a proper entry made on the justice's docket,-if it does not provide that the possession of the property shall remain with the mortgagor, and if such possession did remain with him contrary to the provisions of the mortgage, still, the mortgage is good as between the parties to it, and as to all persons, except creditors and bona fide purchasers. The facts show, that when they purchased the goods of Alexander, he expressly told them they were subject to this mortgage, and they took the title subordinate to the mortgage. They acquired then, the right of redemption only, as that was all the claim Alexander then had, the mortgage being valid as between him and Lewis, and Hathorn and Lewis by the purchase stood in Alexander's shoes, and were not bona fide purchasers, in the sense we understand that relation. They purchased Galena and Chicago Union Railroad Co. v. Pound et al. simply, the right of Alexander, which was the right of redemption, and nothing more. But we see nothing defective in the mortgage, either in form. or substance, and Lewis had the right to assert his claim under it. The facts show that only the old goods which Lewis had sold to Alexander, were replevied. We do not see any error in admitting evidence, or in giving or refusing the instructions complained of, and the evidence fully sustains the finding of the jury. The judgment must be affirmed. Judgment affirmed. THE GALENA AND CHICAGO UNION RAILROAD COMPANY, Appellant, v. AMELIA POUND et al., Appellees. APPEAL FROM KANE. In an action of trespass against a railroad company, for the use of a right of way, the proceedings of the company procuring the condemnation, are competent evidence, and are not to be impeached collaterally. All presumptions are in favor of the regularity of the proceeding. The service of the preliminary notice, was a question in the proceeding, and if then adjudicated, cannot be attacked indirectly. The same land sought to be condemned, must be described in the orders and judgment of the person who condemns. THIS was an action of trespass quare clausum fregit, in the Kane Circuit Court. The declaration contains two counts, and alleges divers trespasses, which were, in substance, that the appellant constructed a part of its railroad through the close described. damages are laid at $2,000. The There was a plea of not guilty, with a stipulation, that the defendants in the court below, should be allowed to give in evidence upon the trial of the cause, any and all matters of defense that would be proper if specially pleaded. At the May term, 1857, of the court, MANIERRE, Judge, presiding, there was a trial, which resulted in a verdict and judgment against the appellant for the sum of $650. Adin Mann testified as follows: I am county surveyor; know where the Bennett place is; it is on the east side of the river; it is the place that was deeded from German to the heirs of Comfort Bennett; the land is a part of the north-west quarter of section 12, and part of the north-east and north-west quarter Galena and Chicago Union Railroad Co. v. Pound et al. of section 11, township 39, range 8, in Geneva, Kane county; there is a railroad running through the land; it enters east side of the farm, twenty chains from north-east corner, and runs across it in nearly a westerly direction; it is the Galena and Chicago Union Railroad, air line; there are about nine acres included in the railroad fence; there is a cut, an excavation through the central part of the farm. The depth of it is about ten feet in the deepest part; the house on the farm is about opposite to the cut, and pretty near it; the earth taken out of the cut is on the north side of the track; there is some on the south; it remains as it was dropped from the cart; it is piled in a strip, in some places the dirt is thrown on the farm beyond the railroad fence; it is one hundred feet between the fences; one pile ran out about two rods; the narrow part is ten or twelve feet wide; there are other places where it is thrown beyond the fence; the soil is gravel; the height of it is two or three feet; the rut of the road is a slight embankment through the farm; the house is not far from the woods; it is quite near to the bushes. There is an orchard west of the house; the house is perhaps ten rods from the road, crossing over the road from one part of the farm to the other; the barn is not far from the house; south from the house, and a little west of the centre of the cut; the cut is not far from nine hundred feet in length; on north side of fence, the dirt is thrown about a rod from fence, for twenty rods. The soil is a mixture of clay and gravel. The witness on his cross-examination testified: That the house is opposite the cut; the cut is near the west side of the farm as a whole; I know where the east line of the farm is; it is prairie on the east side, and timber on the west end. Onefourth part of distance run through by road is timber or brush, mostly cut off, and the rest is prairie; three-fourths of the distance is prairie; the cut is partly on fields and runs into the timber. The timber extends further east on the north side of the track; the timber extends quite a distance along the cut; in going east, I think the timber extends back before you leave the cut. I know where the old house is, it is east of the crossing about forty rods; I saw but one crossing; there is another crossing near the farm. I measured the distance between the railroad fences west of the house; I did not see any dirt on the west side of the house. The cut begins and ends on the farm; after you leave the cut it is prairie and slight fill; towards the east end there is a slight cut again; after leaving the farm there is a slight fill, then a cut again; cut is ten feet, not including spoil. The rail road fences are one hundred feet apart, the line of the road is the centre; in the deepest part of the cut the fence is |