Clapp v. Trobridge
| Decision Date | 26 May 1888 |
| Parties | CLAPP v. TROBRIDGE. POMEROY ET AL. v. TROBRIDGE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeals from district court, Shelby county; A. B. THORNELL, Judge.
These are actions for the recovery of specific personal property. Plaintiffs, E. C. Clapp, R. M. Pomeroy, and Pomeroy & Pierce, each claim the property under a chattel mortgage executed by J. F. Loomis. Defendant, E. J. Trobridge, is sheriff, and he levied on the property under two executions against Loomis. The causes were tried together in the district court, and were submitted in this court on the same record. Plaintiffs allege in their petition that defendant and the execution creditors had notice of the execution of the mortgages before the levy of the execution. The matters of defense relied on are that the mortgages are void for uncertainty of description, and that they were given with intent to hinder and delay creditors. In the case of Pomeroy and Pomeroy & Pierce there was no evidence tending to impeach the good faith of the mortgage, and the court found that it was valid, and the judgment determines that, as against defendant, the mortgagees are entitled to the property. After that judgment, Clapp was permitted, against defendant's objection, to file an amendment to his petition, making Pomeroy and Pomeroy & Pierce parties to his action, for the purpose of having the question of the priority of the mortgages determined. The court found that the mortgage to Clapp was fraudulent, and conferred no rights as against the creditors of Loomis; but he also found that no part of the property was delivered to him under the writ of replevin, and gave defendant judgment against him only for costs. Defendant appealed from both judgments.J. E. Weaver, for appellant.
Macy & Gammon and D. O. Stuart, for appellees.
REED, J., ( after stating the facts as above.)
As the district court found that Clapp's mortgage was fraudulent and void as against the creditors, we need not inquire as to its validity in other respects. The description contained in the other mortgage is as follows: “Nine 16-inch Pekin plows, six Newton cultivators, one Farmers' Friend corn-planter, one Bradley stalk-cutter, eleven Smith farm wagons, four Ketchum farm wagons, two fanningmills, one steering plow.” The property involved in the action is 10 Smith and Ketchum farm wagons. That the record of the mortgage would not have imparted constructive notice to subsequent purchasers or creditors is certainly true. But the court found that both defendant and the execution creditors had actual notice, before the levy, of the existence of the mortgage, and that plaintiffs were claiming the property under it. There was no special finding to that effect, it is true. But the general finding that plaintiffs are entitled to the possession of the property necessarily implies a finding of those facts, and there was evidence tending to prove them. Appellant contends that the evidence did not warrant such finding; but it is sufficient to say, in answer to that position, that the finding is not without support, and, under the well-settled rule, we cannot interfere with it. The case, then, as...
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