Curie v. Wright

• Decision Date: 12 January 1909
• Citation: 119 N.W. 74,140 Iowa 651
• Parties: H. F. CURIE v. MARY C. WRIGHT ET AL., C. W. ELSON, Receiver, Appellant
• Court: Iowa Supreme Court

119 N.W. 74

140 Iowa 651

H. F. CURIE v. MARY C. WRIGHT ET AL., C. W. ELSON, Receiver, Appellant

Supreme Court of Iowa, Des Moines

January 12, 1909

Appeal from Wayne District Court.--HON. H. M. TOWNER, Judge.

ACTION to foreclose two mortgages on separate parcels of real property given by G. Taylor Wright, now deceased, and his wife, Mary C. Wright, one of the defendants in this action to secure the payment of their joint promissory note for $ 1,000, with interest, payable to one Engle, plaintiff's assignor; it being alleged that the sum of $ 768.05 is due thereon. The other defendants are the heirs of Wright deceased, and one Elson, as receiver of the Bank of Linnville, who, after the execution of the mortgages in question, recovered a judgment against said Wright for an indebtedness to the bank, and afterward acquired title to the property covered by the second mortgage at an execution sale under a judgment recovered by one Petty against said Wright on foreclosure of a mechanic's lien. Elson, who alone made defense in the present action, denied that there was anything due on the note secured by these two mortgages, and alleged that the second mortgage was fraudulently given and accepted for the purpose of defeating the judgment recovered by him in behalf of the bank. For reasons not fully appearing in the record, and which need not here be considered, the court held that the first mortgage had been extinguished, and denied plaintiff any relief with reference to the property covered by it; but a decree of foreclosure was granted on the second mortgage for the satisfaction of a judgment of $ 263.17 rendered against all the defendants except Elson, and the receiver's title under his sheriff's deed acquired in pursuance of the mechanic's lien foreclosure suit brought by Petty was adjudged to be junior and inferior to plaintiff's second mortgage. From this decree, the receiver appeals.--Affirmed.

Decree affirmed.

Freeland & Carter, for appellant.

Miles & Steele, for appellee.

OPINION

MCCLAIN, J.

I.

On the issue as to whether the mortgage was fraudulent as against appellant, the evidence sustains the finding of the lower court, which held against appellant's contention. It is true that the mortgage was executed only one day prior to the rendition of judgment against G. Taylor Wright in an action pending against him by the receiver; but, until the receiver recovered his judgment, he had no lien upon Wright's property, and, unless the mortgage was taken for the purpose of defrauding him, the mortgagee acquired a prior lien. The...