Cobb v. Chase

• Decision Date: 24 June 1880
• Citation: 6 N.W. 300,54 Iowa 253
• Parties: COBB v. CHASE ET AL
• Court: Iowa Supreme Court

6 N.W. 300

54 Iowa 253

COBB v. CHASE ET AL

Supreme Court of Iowa, Des Moines

June 24, 1880

Appeal from Fayette District Court.

THE question in this case arises between the plaintiff as attaching creditor of the defendant Chase, and intervenor Rhoades, who claims to hold a chattel mortgage upon the attached property. The intervenor was a creditor of Chase and was pressing him for payment. It was finally agreed that Chase should execute to the intervenor a chattel mortgage upon some cows and other stock, but the animals were not specifically pointed out or agreed upon. Afterwards in pursuance of the agreement Chase, in the absence of the intervenor, executed to him a chattel mortgage upon eight cows and three steers, and filed the same for record. This was done on the 27th day of November, 1878. On the 17th day of December, 1878, the plaintiff levied an attachment upon the mortgaged property. Afterwards, upon the same day, the intervenor came into possession of the mortgage for the first time. He had, however, before that time, and before the plaintiff's levy, been informed by the recorder that such mortgage had been filed for record. In the action for attachment the intervenor set up the chattel mortgage, and claimed the right to hold the property thereunder. The court dismissed the petition for intervention and the intervenor appeals.

AFFIRMED.

A. S Hollenbeck, for appellant.

Ainsworth & Hobson and Hoyt & Hancock, for appellee.

OPINION

ADAMS, CH. J.

The question presented for our determination is whether, under the established facts, the mortgage should be regarded as delivered before the attachment. The mere execution and filing of an instrument for record does not constitute delivery. Day v. Griffith, 15 Iowa 104. The appellant, however, insists that the present case differs from that in two respects. In that case the antecedent agreement was merely that the mortgagor would give security whereas in this case the agreement was to give security upon some cows and other stock. In this case too the mortgagor had knowledge of the mortgage before the levy of the attachment whereas in that case the mortgagor had no such knowledge.

Where a person agrees with another to mortgage to him specific property, and in pursuance of the agreement executes a mortgage upon the property, and files it for record, there is much reason for holding that such mortgage is to be deemed accepted by the...