Evera v. Davis

• Citation: 2 N.W. 509,51 Iowa 637
• Parties: VAN EVERA v. DAVIS
• Decision Date: 07 October 1879
• Court: Iowa Supreme Court

2 N.W. 509

51 Iowa 637

VAN EVERA v. DAVIS

Supreme Court of Iowa, Des Moines

October 7, 1879

Appeal from Jackson Circuit Court.

ON the 6th day of May, 1876, Willard Duffin executed to the plaintiff a chattel mortgage the material portions of which are as follows: "Know all men by these presents, that I Willard Duffin, in consideration of five hundred dollars * * paid by J. R. Van Evera, * * * * have sold and do grant and convey unto said party of the second part, * * the following goods and chattels, to-wit: The entire stock of drugs and medicines, oils, paints and all stock of every description now kept by said W. Duffin, and all further stock that may be purchased hereafter, now and hereafter to be in the store formerly occupied by J. Orcutt & Son. And it is further agreed that the said W. Duffin shall keep the stock well insured in some good and reliable insurance company, with said policy duly assigned to the said J. R. Van Evera, for his further security for above amount."

On the 21st day of July, 1877, Willard Duffin executed to the plaintiff another chattel mortgage, the portion of which material to this controversy is as follows: "Know all men by these presents, that I, Willard Duffin, in consideration of one thousand two hundred and sixty-five dollars, paid by J. R. Van Evera, have sold, and do grant and convey, unto the said party of the second part, the following goods and chattels, to-wit: The entire stock of drugs medicines, oils, paints, and all goods of every description now kept by said W. Duffin in the store-room formerly kept and occupied by J. Orcutt & Son; also, all goods hereafter purchased to replenish said stock." Each of these mortgages contains a provision that whenever the mortgagee shall choose so to do, it shall be lawful for him, by himself or agent, to take possession of said goods and chattels.

On the 15th of January, 1878, the plaintiff handed the chattel mortgages in question to one Shrigley, for foreclosure. Shrigley obtained the keys of the store-room from Duffin, and took possession of the store, and carried the keys until he sold the stock. The property now in controversy is a number of bottles, together with a glass funnel, marble till file sponge rack, mortar, drawers, globe, wall paper trimmer, and other articles of like character used in a drug store, and of the total value of one hundred and seventy-one dollars and thirty-eight cents. Three or four days after Shrigley took possession of the store he proceeded to invoice the property under two distinct heads, that of "stock" and "fixtures." The property in controversy was invoiced as "fixtures."

On the 31st day of January, 1878, the defendant, as sheriff, at the suit of Olney & McMahon against Willard Duffin, levied upon the property in controversy.

On the 23d day of February, 1878, the plaintiff commenced this action of replevin, claiming that he is entitled to the possession of the property in question under his chattel mortgage. The cause was tried to the court, and judgment was rendered for the defendant. The plaintiff appeals.

AFFIRMED.

D. A. Fletcher, for appellant.

G. L. Johnson, for appellee.

OPINION

DAY, J.

The plaintiff, being introduced as a witness, was asked the following questions: Q. "State what instructions you and Mr. Duffin, or either of you, in the presence of the other gave to S. S. Germond as to the property that should be included in the...