Farmers' & Traders' Bank of Bonaparte v. Haney

• Decision Date: 20 January 1893
• Citation: 54 N.W. 61,87 Iowa 101
• Parties: FARMERS' & TRADERS' BANK OF BONAPARTE v. HANEY ET AL.
• Court: Iowa Supreme Court

87 Iowa 101

54 N.W. 61

FARMERS' & TRADERS' BANK OF BONAPARTE

v.HANEY ET AL.

Supreme Court of Iowa.

Jan. 20, 1893.

Appeal from district court, Van Buren county; Charles D. Leggett, Judge.

Action upon certain promissory notes, and for the foreclosure of a mortgage on certain real estate given to secure the payment of the notes. The notes and mortgage were executed by the defendant Dennis Haney to secure quite a large amount of indebtedness to the bank. Haney was a stockholder in the bank, and the plaintiff claims that by virtue of the provisions contained in his stock certificate, and certain by-laws of the banking association, the plaintiff has a lien upon the stock for any indebtedness of Haney to the bank. There was a hearing on the merits in the district court, which resulted in a full decree for the plaintiff. Defendants appeal.J. F. Smith and Wherry & Walker, for appellants.

Sloan, Work & Brown, for appellee.

ROTHROCK, J.

1. It appears from the petition that there were mechanics' liens upon some of the property. The questions as to these liens are not involved in this appeal; and no question is made, involving the right of the plaintiff to join, with the suit for foreclosure, the claimed lien upon the bank stock owned by defendant Haney. The appeal presents a contest between the plaintiff and the State Bank of Keokuk, appellant, a judgment creditor of Haney, as to priority of liens upon the mortgaged real estate and the bank stock. There is no question as to the fact that the defendant Haney is indebted to the plaintiff in the amount named in the notes and mortgage, and the validity of the judgment of the State Bank of Keokuk is not questioned. The decision we are required to make as to the mortgaged property involves the validity of the mortgage.

It appears that on the 29th day of March, 1888, Haney was the owner of real estate in and about the town of Bonaparte, of considerable value. He was indebted in a large amount to the Farmers' & Traders' Bank of Bonaparte, and was also indebted to the State Bank of Keokuk. On said last-named day, said Haney and his wife executed an instrument in writing which is claimed to be a deed of conveyance of all of his real estate to all of his children, jointly. These children are named Elizabeth Anderson, wife of Silas Anderson, Robert L. Haney, William E. Haney, and Lulu B. Haney. After the deed was executed, it was placed in the hands of said Silas Anderson to be taken to Keosauqua, the county seat. Anderson was to submit the deed to Hon. Robert Sloan for his examination and advice as to the propriety and legality of the conveyance; and, if approved by him, Anderson was to file it in the recorder's office for record. Sloan advised against the conveyance, and Anderson carried the written instrument back to Bonaparte, and it was destroyed by the direction of Dennis Haney, and the mortgage in controversy was executed and delivered. It is claimed in behalf of appellants that the conveyance from Haney to his children was fully executed and delivered, and passed the title to the land to the grantees, subject to the right of the creditors of Haney to impeach it for fraud in an action brought for that purpose; and voluminous and able arguments are presented upon both sides of the question whether, after a fraudulent conveyance by a debtor, one of his creditors can acquire priority of other creditors by taking a mortgage upon the property from the debtor. In the view we take of the case, it is not necessary to determine that question. In our opinion, the deed from Haney to his children did not become valid, for any purpose, because it is shown, by a clear preponderance of the evidence, that the deed was not delivered. It is true it was intrusted to Anderson to be taken to Sloan, and if approved it was to be filed for record. There is no question that Anderson carried it to Sloan as the agent of Haney, and Anderson returned the deed, and it was destroyed by the direction of Haney, the grantor. There is a question made whether Anderson returned the deed to Haney. It may be true that he did not place it in his hands, but it was placed on a mantel in Haney's house, and he directed it to be destroyed. The delivery of a deed may be shown by any act of the grantor which denotes an intention to pass the instrument over to the grantee, and it may be a good delivery without passing into the hands of the grantee. The delivery may be to a stranger for the use of the grantee. Mitchell v. Ryan, 3 Ohio St. 377;Hatch v. Hatch, 9 Mass. 309. A delivery of the deed to the wife of the grantee, with the declaration that it was intended for the benefit of the grantee, is a...