Cuddy v. Becker, Mayer & Co.

• Decision Date: 19 February 1910
• Citation: 146 Iowa 250,124 N.W. 1071
• Parties: CUDDY ET AL. v. BECKER, MAYER & CO. ET AL.
• Court: Iowa Supreme Court

146 Iowa 250

124 N.W. 1071

CUDDY ET AL.

v.BECKER, MAYER & CO. ET AL.

Supreme Court of Iowa.

Feb. 19, 1910.

Appeal from District Court, Keokuk County; W. G. Clements, Judge.

Appeal from an order of the district court to an assignee for the benefit of creditors to turn over certain property to the mortgagees of the assignor. Affirmed.C. D. Burkheimer and C. M. Brown, for appellants.

C. C. Heninger, for appellee assignee.

Talley & Hamilton, for appellees mortgagees.

DEEMER, C. J.

On the 11th day of January, 1909, one W. O. Cuddy, who had theretofore been engaged in business at the town of Hedrick in Keokuk county, Iowa, for a number of years, made an assignment to one W. H. Young for the benefit of his creditors. Young immediately accepted the assignment, and, discovering that the goods assigned were heavily mortgaged, he at once made application to Hon. W. G. Clements, one of the judges of Keokuk county, for an order to turn the mortgaged goods over to the mortgagees. Judge Clements made an order that the matter be heard at the coming February term of the Keokuk county district court, notice thereof to be given by one publication in a newspaper at least five days prior to the hearing. At the time so fixed certain general creditors, among whom were appellants herein, appeared and filed objections against turning the mortgaged property over to the mortgagees. The mortgagees were also brought in, and they joined with the assignee in asking that the property be turned over. They admitted the making of the mortgage to them, and joined with the assignee in asking a delivery of the property. The general creditors filed a motion to postpone the hearing in order that they might secure the testimony of the assignor, Cuddy; but this was denied and exception taken. The application was then submitted to the court, resulting in an order on the assignee to turn over the mortgaged property to the mortgagees. From the order so made, the general creditors appeal.

One of the points relied upon for a reversal is that the description of the mortgaged property as set forth in the mortgage was insufficient to cover the property turned over to the assignee. That description is as follows: “All of my stock of merchandise consisting of clothing, hats, caps, trunks, valises, gents' furnishing goods, and all other articles of merchandise, including store furniture and fixtures now owned and kept by me for sale in the one story brick building situated on Lot No. 13 in Block No. 7 in the town of Hedrick, Iowa. Also on all goods and merchandise that may be added to said stock from time to time by me in the future, also book accounts, notes and evidence of debt due and owing to me at this time, or that may be made in the future in the usual course of trade.” Beyond question this description was sufficiently definite to cover all the property, unless it be the books of account, notes and other evidences of indebtedness. As to these, the testimony shows that the mortgagees took actual possession of the books of account and notes belonging to Cuddy, and attempted to be covered by the mortgage the day before the assignment was executed. This cured any defect in the description, even if it be conceded that the description would otherwise be insufficient. Kelley Maus Co. v. Andrews, 102 Iowa, 119, 71 N. W. 251. Appellants were nothing more than general creditors when the mortgagor turned this property over, and they have no greater rights through the assignee than the assignor would have had. In re Wise, 121 Iowa, 359. 96 N. W. 872; Kelley Case, supra; Meyer v. Evans, 66 Iowa, 179, 23 N. W. 386.

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