Campbell v. Wheeler

• Decision Date: 20 October 1886
• Citation: 69 Iowa 588,29 N.W. 613
• Parties: CAMPBELL v. WHEELER.
• Court: Iowa Supreme Court

69 Iowa 588

29 N.W. 613

CAMPBELL

v.WHEELER.

Supreme Court of Iowa.

October 20, 1886.

Appeal from Cerro Gordo district court.

Plaintiff brought this action to recover the value of certain personal property which he alleges defendant unlawfully and wrongfully carried away and converted, and the cost and expense of carrying back to his farm certain other property which defendant removed therefrom. Defendant answered that he took possession of said property under four chattel mortgages, given by plaintiff to secure certain debts he was owing him, and that he foreclosed said mortgages, and sold sufficient of the property to satisfy the indebtedness. In his reply plaintiff averred that the alleged sale of the property was void, for the reason that it was not properly advertised, and that an amount of said property was sold by defendant in excess of the debts secured by the mortgages, and that defendant had received said excess, and converted it to his own use. The verdict and judgment were for plaintiff, and defendant appealed.Glass & Hughes and L. S. Butler, for appellant.

Blythe & Markley and Stanberry & Clark, for appellee.

REED, J.

On the seventeenth of February, 1881, plaintiff and his wife executed to defendant their promissory note for $542.68, and gave a chattel mortgage to secure the same. This note and mortgage, as is shown by a memorandum written on the back of the note, were given as security for five other notes previously executed, and for any book-account or other claim that defendant might hold against plaintiff during the years 1881 and 1882. Three of the promissory notes mentioned in said memorandum were also secured by chattel mortgages on the same property covered by the mortgage given on the seventeenth of February. Each of said mortgages contained the provision that, upon the failure of the mortgagor to pay the debt secured thereby at maturity, the mortgagee might take the property, and sell it at public sale, after giving 10 days' notice of the time and place of sale, by posting up written or printed notices in three public places in the county. Defendant claimed that there was a balance due him on the said notes, and on an account which accrued after the seventeenth of February, 1881; and on the sixteenth of March, 1882, he took possession of the property, and removed it from plaintiff's farm, and on the twenty-seventh of the same month he sold a sufficient amount of it, at public sale, to satisfy the alleged balance. The portion not sold was subsequently taken possession of by plaintiff, and moved back to his own premises.

1. A question in the case was whether defendant advertised the sale in the manner prescribed in the mortgages. Plaintiff claimed that the only notice posted up by defendant was of a sale under the mortgage given to secure one of the notes executed prior to the seventeenth of February, 1881, and that nothing remained due on that note at the time of the sale. Defendant introduced a witness who testified that he prepared notices of a sale under each of the mortgages, and posted them up in three public places in the county, one of which was at the court-house; but he did not designate the particular place in or about the building where said notice was posted. The district court gave the following instruction: “If the notices required by the mortgages to be given prior to the sale were not posted as required, the sale would be invalid; but if you find that three notices of the time and place of the sale and description of the property were posted in three public places in the county, one of which was at the front of the court-house, as to each of the mortgages, it would be a valid sale, so far as the notices were concerned.” By the first clause of this instruction the jury were told that the posting of notices in the manner prescribed by the mortgages was essential...