Adams v. Commercial Nat'l Bank of Dubuque

• Decision Date: 23 April 1880
• Citation: 53 Iowa 491,5 N.W. 619
• Parties: ADAMS v. THE COMMERCIAL NATIONAL BANK OF DUBUQUE AND OTHERS.
• Court: Iowa Supreme Court

53 Iowa 491

5 N.W. 619

ADAMS

v.THE COMMERCIAL NATIONAL BANK OF DUBUQUE AND OTHERS.

Supreme Court of Iowa.

Filed April 23, 1880.

Appeal from Buena Vista circuit court.

Action by ordinary proceeding to recover the value of certain personal property which it was alleged the defendants had converted to their own use. Trial to the court, judgment for the defendants, and the plaintiff appeals.H. Opplington, for appellant.

Robinson & Milchrist, for appellees.

SEEVERS, J.

One Sanborn executed to the plaintiff a mortgage on personal property described in the mortgage as follows: “One hundred and ninety acres of wheat, one hundred and thirty-five acres of corn, twenty-five acres of rye, sixty acres of barley and oats; all of said crops growing upon section seventeen, (17,) township thirty-seven, (37,) range ninety (90.)” The mortgage also contained the following: “In case of any attempting to * * * remove from the county of Buena Vista the aforesaid goods and chattels the * * * mortgagee * * * may seize * * * and sell the same; * * * said sale to take place on said section seventeen, in the county of ________, state of Iowa.” The mortgagorin the mortgage described himself as being “of the county of Buena Vista.”

The defendant bank having procured a judgment against the mortgagor caused the execution issued thereon to be levied on certain growing crops, consisting of wheat, corn, rye, barley and oats, on section 17, township 90, range 37, as the property of the mortgagor. The bank gave the sheriff an indemnifying bond, and the property levied upon, or a portion of it, was sold, and the proceeds applied by the bank to the payment of the execution. The plaintiff, claiming he was entitled to the property under the mortgage, brought this action to recover its value; and, among other allegations, it was stated in the petition that said mortgage was duly filed for record, and that said bank had actual notice of the mortgage; that there was a mistake in the description of the property in the mortgage, in this, that it was described as being in township 37, range 90, instead of township 90, range 37, and that said mistake was made by the draftsman.

On the trial the plaintiff sought to prove this mistake, but upon defendant's objection the evidence was excluded. In this there was no error, for two reasons. The petition did not ask a reformation of the mortgage. If it had it could not have been granted in this action, because it is a proceeding at law. Van Dusen v. Parley, 40...