Bedwell v. Gephart

Decision Date26 September 1885
Citation24 N.W. 585,67 Iowa 44
PartiesBEDWELL AND ANOTHER v. GEPHART.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from Wapello circuit court.

Action in equity to establish a credit on a judgment obtained by defendant against plaintiffs. The material facts are stated in the opinion. The circuit court dismissed the petition, and plaintiffs appeal.W. W. Corey and H. B. Hendershott, for appellants, George F. Bedwell and another.

Stiles & Beaman, for appellee, John Gephart.

REED, J.

On the nineteenth day of August, 1875, defendant, Gephart, commenced an action in the circuit court against one J. O. Briscoe on a money demand. A writ of attachment was issued in the cause, and was levied on a number of lots in the city of Ottumwa. A second attachment was subsequently issued in the case, on which certain personal property was seized. To secure the release of this property, Briscoe filed two bonds conditioned that he would perform any judgment which might be rendered against him in the further progress of the action. One of these bonds was in the penalty of $1,000, and plaintiff Bedwell was surety thereon. The penalty of the other bond was $450, and plaintiff Greenlee was surety on it. Judgment was rendered in said cause on the eighteenth day of November, 1878, against said Briscoe for $1,558.97 damages and $158.09 costs. At a subsequent term of the court, Gephart filed a motion for judgment against the sureties on said bonds. They were served with notice of this motion, and appeared, and resisted it on grounds that need not here be stated. The result of the proceeding was that judgment was entered against each for the amount of the penalty of the bond on which he was surety. These judgments were rendered on the sixth day of July, 1880. The title to the lots on which the first writ of attachment was levied was held by Mary A. Briscoe, the wife of J. O. Briscoe. Gephart instituted an action in equity to subject this property to the payment of his debt, alleging in his petition that it belonged, in fact, to J. O. Briscoe, and had been purchased with his means, and that he had procured the title to it to be conveyed to his wife for the purpose of placing it beyond the reach of his creditors. The Briscoes answered this petition, denying its allegations. This equitable action was pending when the second writ of attachment was issued, and when plaintiffs signed the bonds on which the judgments against them were rendered. The Briscoes had an opportunity to sell one of the attached lots on what they regarded as favorable terms, and they proposed to Gephart that if he would release said lot from the attachment, and permit the purchaser to take it, discharged of the lien of his attachment and judgment, they would pay him, to be applied on the judgment, a portion of the price which they would receive for it. Being advised by his counsel that it was doubtful whether the claim set up in the equitable action could be established, he accepted the offer and gave a written release of the lot. The price at which the lot was sold was $1,050 and $500 of that amount was paid to Gephart. The transaction was had after the judgment was rendered against Briscoe, but before the judgments were taken against the plaintiffs. Gephart entered a credit of the amount received by him in the transaction on the judgment against Briscoe. The release of the lot was made without plaintiffs' knowledge or consent. And it is shown that the lot belonged, in fact, to J. O. Briscoe, and that the conveyance to his wife was made for the purpose of defrauding his creditors.

The relief demanded by plaintiffs in this action is that they have the benefit of a credit on the judgments against them for the full amount realized from the sale of said lot; the ground of their claim being that, as their liability on the bonds was that of sureties, they were entitled to the benefit of all securities which came into the hands of the creditor; and as, by the discharge of a portion of the value of said lot from the lien of the attachment levy and judgment, he deprived them of the benefits of that amount of the security held by him, they are now entitled to be discharged pro tanto. The law is well settled that the relinquishment by the creditor, without the consent of the surety, of any hold which he has actually acquired on the property of the principal debtor operates to discharge the surety to the extent of the value of the interest so...

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2 cases
  • Emp'rs Mut. Cas. Co. v. Pete Vicari Gen. Contractor, LLC
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • February 6, 2020
    ...the securities in the hands of a creditor are preserved for his indemnity in the event that he is compelled to pay it. Bedwell v. Gephart, 24 N.W. 585, 586 (1885). Moreover, Louisiana federal courts have applied Iowa federal law and held that a surety is entitled to collateral security purs......
  • Bedwell v. Gephart
    • United States
    • Iowa Supreme Court
    • September 26, 1885

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