87 N.W. 435 (Iowa 1901), Aultman & Taylor Machinery Co. v. Kennedy

Citation:87 N.W. 435, 114 Iowa 444
Opinion Judge:DEEMER, J.
Party Name:THE AULTMAN & TAYLOR MACHINERY CO. v. JAMES KENNEDY, Defendant, RED RIVER VALLEY NATIONAL BANK OF FARGO, N. D., Intervener, Appellee
Attorney:Dodge & Dodge and Stutsman & Stutsman for appellant. L. Monte Cowles and C. L. Poor for appellee.
Case Date:October 03, 1901
Court:Supreme Court of Iowa
 
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Page 435

87 N.W. 435 (Iowa 1901)

114 Iowa 444

THE AULTMAN & TAYLOR MACHINERY CO.

v.

JAMES KENNEDY, Defendant,

RED RIVER VALLEY NATIONAL BANK OF FARGO, N. D., Intervener, Appellee

Supreme Court of Iowa, Des Moines

October 3, 1901

Appeal from Des Moines District Court.--HON. JAMES D. SMYTHE, Judge.

ACTION at law, aided by attachment. The intervener claimed the property attached under certain mortgages executed by defendant in the state of North Dakota. There was a trial to the court, resulting in a judgment finding intervener entitled to the possession of the property, and plaintiff appeals.

Affirmed.

Dodge & Dodge and Stutsman & Stutsman for appellant.

L. Monte Cowles and C. L. Poor for appellee.

OPINION

Page 436

[114 Iowa 445] DEEMER, J.

James Kennedy is a resident of North Dakota. On and prior to August 4, 1898, he was temporarily engaged in work at or near Burlington, in this state, in which he was using horses, mules, wagons, scrapers, plows, etc. During the night of August 4th Kennedy packed his entire outfit on board the cars, to be shipped out of the state. Hearing of his purpose, plaintiff, a creditor, commenced an attachment suit, and levied on the property hitherto described. On the 14th day of March, 1898, Kennedy, who, as we have said, was a resident of North Dakota, executed a chattel mortgage covering certain personal property then in Cass county, in that state (that being the place of his residence), and the property attached in this case, which was temporarily in this state, to the Red River National Bank intervener. This mortgage was filed for record with the register of Cass county, and duly recorded as required by the laws of the state where executed. The district court found that plaintiff had actual notice of intervener's mortgage before it made its levy, and that conclusion must be accepted as a verity, in view of the conflict in the evidence on this proposition. The mortgage was not recorded in this state, but was recorded in the county and state where the mortgagor resided. Part of the property covered thereby was in the county where the mortgage was recorded, and part of [114 Iowa 446] it was temporarily in this state. It must be conceded that the recording of the mortgage in North Dakota did not, according to the great weight of authority, give constructive notice to purchasers or attaching creditors of property situated in this state at the time the mortgage was executed. Langworthy v. Little, 12 Cush. 109; Ames Iron Works v. Warren, 76 Ind. 512 (40 Am. Rep. 258); Green v. Van Buskirk, 7 Wall. 139 (19 L.Ed. 109); Hervey v. Locomotive Works, 93 U.S. 664 (23 L.Ed. 1003); Golden v. Cockril, 1 Kan. 259; Clark v. Tarbell, 58 N.H. 88. Had the property been in the state of North Dakota when the mortgage was executed, and had the mortgage been duly recorded according to the laws of that state, a subsequent removal of the property to this state would not have defeated the mortgagee's lien. Smith v. McLean, 24 Iowa 322; Simms v. McKee, 25 Iowa 341; Fisher v. Friedman, 47 Iowa 443.

As the property was not in Dakota when the mortgage was executed and recorded, plaintiff was not bound to search the records of that state to discover if there were any liens thereon; and, as the mortgage was not recorded in this state, it had no constructive notice thereof. The district court found that it had actual notice of the mortgage before it levied its attachment, and for that reason, as we understand...

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