Aultman, Miller & Co. v. McGrady

• Decision Date: 20 April 1882
• Citation: 58 Iowa 118,12 N.W. 233
• Court: Iowa Supreme Court
• Parties: AULTMAN, MILLER & CO. v. MCGRADY AND ANOTHER.

58 Iowa 118

12 N.W. 233

AULTMAN, MILLER & CO.

v.MCGRADY AND ANOTHER.

Supreme Court of Iowa.

Filed April 20, 1882.

Appeal from Cerro Gordo circuit court.

Action in equity to correct a record entry and establish a lien of a judgment as paramount to the lien of a mortgage. The plaintiffs obtained two small judgments against the defendant McGrady before a justice of the peace of Cerro Gordo county. Afterwards they caused transcripts of the judgments to be filed in the office of the clerk of the circuit court of the county, and caused an execution to issue, which was levied upon certain growing crops. Afterwards the plaintiffs agreed to extend the time of payment, and in consideration thereof McGrady executed to them a chattel mortgage to secure the judgments. The officer who held the execution released the levy and made a return upon the execution in these words: “I hereby certify and return that the within execution was satisfied by defendant giving security for said moneys. Said security taken by order of plaintiffs.” The clerk then made an entry upon the record of the judgments in the following words: “Execution returned satisfied, as per sheriff's return thereon. Security taken by order of plaintiffs.” McGrady then borrowed money of the defendant the Edinburgh-American Land Mortgage Company, and to secure the money executed a mortgage upon certain land in Cerro Gordo county. The mortgagee relied upon the return upon the execution, and upon the clerk's entry, as showing that the judgments had been satisfied, and that the land mortgaged was free from the liens thereof. The judgments had not, in fact, been satisfied, and the court below so held; but it held, also, that by reason of the return made upon the execution and the entry made by the clerk, the judgments appeared to be satisfied at the time the mortgage was executed, and so the mortgage had, in equity, become paramount to the lien of the judgments; and decree was entered accordingly. The plaintiffs appeal.Wilber & Sherwin, Glass & Hughes, and J. T. Lattimore, for appellants.

Bush & Hurn, for appellees.

ADAMS, J.

A return upon execution is evidence only of what can properly be embraced in a return. A return showing that the judgment has been satisfied by the judgment defendant is not evidence of such fact. Abercrombie v. Chandler, 9 Ala. 625. A return upon execution should be a statement of what is done by the officer in obedience to writ. The provision of statute in relation thereto is in these words: “The officer to whom an execution is legally issued shall indorse thereon the day and hour when he received it, and the levy, sale, or other act done by virtue thereof, with the date, and the dates and amounts of any receipts or payments in satisfaction thereof.” Code, § 3038. There is no provision for a return showing the acts of...