Poole v. Seney
| Decision Date | 10 June 1885 |
| Citation | 66 Iowa 502,24 N.W. 27 |
| Parties | POOLE AND OTHERS v. SENEY. AUERBACH AND OTHERS v. SENEY. CAMPBELL AND ANOTHER v. SENEY. MELHAP AND OTHERS v. SENEY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeals from Franklin circuit court.
These are actions in equity to set aside two mortgages given by defendant John Seney and wife to Charles Seney, and to subject the property covered thereby to the payment of certain judgments obtained by plaintiffs against John Seney and the firm of Combellick & Seney. The petitions in the several cases are substantially alike, and they were all submitted on the same evidence.
There are two counts in each petition. In the first count it is averred that the plaintiffs obtained judgments for certain amounts against John Seney, and that he was the owner of certain real estate and personal property which was subject to judicial sale for the satisfaction of said judgments; but that, before said judgments were obtained, said John Seney had executed two mortgages on said property to Charles Seney to secure an alleged indebtedness of $3,270 to him. That John Seney was not indebted to Charles in that amount, or any portion of it, but that said mortgages were given for the purpose of hindering and delaying plaintiffs in the collection of their debts against John Seney, and that they were given without consideration, and that the amount secured by the mortgages was greater than the actual value of the property covered thereby, and that John Seney had no other property out of which said judgment can be collected.
In the second count it is averred that the plaintiffs also obtained judgments against the firm of Combellick & Seney, and that John Seney was a member of that firm, and that the firm was dissolved two days before the execution of the mortgages to Charles Seney; that it was insolvent at the time of the dissolution, and that the property covered by the mortgages was assets of the partnership, and the debt secured by the mortgages was the individual debt of John Seney. The answers deny the allegations that the mortgages were voluntary, or that they were given with the fraudulent intent alleged. They also deny that the debt secured by the mortgages was the individual debt of John Seney, and allege that a portion of said debt was the debt of Combellick & Seney. The circuit court rendered judgment for plaintiffs, setting aside the mortgages, and subjecting the property to sale in satisfaction of the judgments. Defendants appeal.McKenzie & Hemmingway, for appellants.
Taylor & Evans, for apellees.
The allegation in the first count of the petition that the mortgages were voluntary and were given with intent to hinder and delay the creditors of John Seney is not established by the evidence. Both John Seney and Charles Seney swear to the existence of the debt secured by the mortgage, and they give the different items which they say go to make up the sum of the indebtedness, and state the different transactions out of which the several items of indebtedness arose. Their statements are not contradicted in any respect. Nor are the witnesses shown to be unworthy of belief. Nor is the story they tell unreasonable or incredible. To reach the conclusion that the mortgages were voluntary we would have to disregard the presumption arising from the transaction itself, and at the same time reject the testimony of two witnesses who are in no manner discredited, and we are not warranted in doing this. It is shown that John Seney was insolvent at the time the mortgages were given, and that he was then largely indebted; but Charles swears that he had no knowledge of these facts when he accepted the mortgages, and we find no circumstances established by the evidence which tend to show that his statement in that respect is false. And besides this, the law will protect the creditor who by his diligence has secured his own claim even though he knew of the failing condition of the debtor when he accepted the security, if his only purpose in accepting it was to protect his own interest.
The amount secured by the mortgages is somewhat in excess of the amount of the several items which the witnesses swore were included in it. This circumstance should be considered in determining whether the transaction was fraudulent. The fact that the mortgage is given ostensibly to secure an amount in...
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