City Bank of Boone v. Radtke

• Decision Date: 28 January 1893
• Citation: 54 N.W. 435,87 Iowa 363
• Parties: CITY BANK OF BOONE v. RADTKE.
• Court: Iowa Supreme Court

87 Iowa 363

54 N.W. 435

CITY BANK OF BOONE

v.RADTKE.

Supreme Court of Iowa.

January 28, 1893.

Appeal from district court, Boone county; John L. Stevens, Judge.

Action to recover possession of certain steers. Trial to court. Judgment for plaintiff. Defendant appeals. Plaintiff claims possession of 37 head of steers by virtue of a chattel mortgage thereon, of date February 25, 1885, given by L. W. Fisk & Son, which mortgage was duly filed for record, and recorded on the same day. Defendant denies the execution, acknowledgment, and recording of plaintiff's mortgage, and avers that the acknowledgment was taken by one J. C. Hall, who was at the time a member of plaintiff copartnership, and interested in the mortgage; avers that defendant never had either actual or constructive notice of plaintiff's mortgage. Defendant claims the steers by virtue of a chattel mortgage thereon, of date September 4, 1885, given by the same parties, and filed for record at the date last mentioned, and under which she took possession of the steers. Plaintiff took said steers from the defendant by virtue of a writ of replevin issued in this action. Plaintiff, replying to defendant's answer, denies each allegation thereof, and avers that on November 8, 1886, said L. W. Fisk & Son executed and delivered to defendant a chattel mortgage on the steers in controversy to secure the same note which the mortgage set out in the answer secured; that said mortgage was given by L. W. Fisk & Son, and accepted by defendant, as subject to plaintiff's said mortgage, and the defendant thereby agreed and took possession and holds the property in controversy under said mortgage of November 8, 1886, subject to the lien of plaintiff's mortgage, and the payment of the indebtedness secured thereby, whereby plaintiff claims defendant is estopped from asserting any right to the property in controversy contrary to plaintiff's mortgage. The court found specially that plaintiff was a partnership at the time its mortgage was executed and acknowledged, and that J C. Hall, the notary who took said acknowledgment, was at the time a member of said partnership. The court below found as a conclusion of law that defendant was estopped from asserting the priority of her first mortgage.Jordan & Brockett, for appellant.

E. L. Green, for appellee.

KINNE, J.

1. Some errors are assigned upon the admission of evidence, which we do not deem it necessary to consider. The evidence shows without conflict that the notary, J. C. Hall, who took the acknowledgment of plaintiff's mortgage, was at the time a partner in plaintiff, which was a copartnership. This being the case, the acknowledgment of plaintiff's mortgage was void, and the mortgage not entitled to be recorded; hence the record of it in fact made was not constructive notice to defendant.

2. The controlling question in the case is, did defendant, by taking the second mortgage of November 8, 1886, become estopped from asserting her right to the property in controversy, by virtue of her first mortgage, dated September 4, 1885? If she did, then the judgment of the lower court was right. Defendant's mortgage dated September 4, 1885, described the property as follows: “(36 head of cattle.) Twenty two year old steers; sixteen one year old steers. All of the above property is now in our possession, and are our sole and individual property, and are free from all incumbrance. To obtain credit we make this statement.” In her mortgage of November 8, 1886, the property is described as “all the steers we now own,” etc. This mortgage also recites: “This mortgage is given as additional security for the note hereinafter described, and in addition to another mortgage securing the same note, given by us to Annie Radtke, September 4, 1885; and is a first mortgage upon said steers, except as to the yearling steers, and the 18 two year old steers, by us mortgaged to the City Bank of Boone, Iowa, February 23, 1885.” We think, at the time defendant took her second mortgage, she had actual notice, through her attorney, of plaintiff's mortgage; hence, as to it, it is immaterial as to whether the acknowledgment of plaintiff's mortgage was sufficient to impart notice. But there is no claim that at the time she took her first mortgage she had any actual notice of plaintiff's mortgage, and, by reason of the illegal acknowledgment, she certainly did not have constructive notice of it. If, then, she actually took possession of the property under and by virtue of her first mortgage, she has the better right thereto, unless the taking of the second mortgage worked an estoppel as against her. We are unable to see any reason whatever for holding that the act of taking the second mortgage, in which was a clause recognizing plaintiff's mortgage, should operate to estop defendant from taking and holding the steers under the first mortgage. The law is well settled “that the taking of a second...