Farmers' Trust & Savings Bank of Laurens v. Miller

• Citation: 214 N.W. 546,203 Iowa 1380
• Decision Date: 01 July 1927
• Docket Number: 37760
• Parties: FARMERS TRUST & SAVINGS BANK OF LAURENS, Appellee, v. ANNA R. MILLER et al., Appellants
• Court: United States State Supreme Court of Iowa

214 N.W. 546

203 Iowa 1380

FARMERS TRUST & SAVINGS BANK OF LAURENS, Appellee, v. ANNA R. MILLER et al., Appellants

No. 37760

Supreme Court of Iowa, Des Moines

July 1, 1927

Appeal from Clay District Court.--JAMES DELAND, Judge.

An action to foreclose a real estate mortgage which is also claimed to be a chattel mortgage on crops grown on mortgaged land; also, that the mortgage be foreclosed, both upon the land and the crops, and demanding the appointment of a receiver, to take possession of the land and crops in the field. From a finding in favor of the plaintiff defendants appeal.

Affirmed.

Healy Thomas & Healy, for appellants.

Gilchrist & Gilchrist, for appellee.

ALBERT J. EVANS, C. J., and DE GRAFF, MORLING, and KINDIG, JJ concur.

OPINION

ALBERT, J.

On April 19, 1923, Anna R. Miller was the owner of about 280 acres of land in Section 23 in Clay County, Iowa. On that day, she and her husband executed to the plaintiff a mortgage, the material part of which, so far as this litigation is concerned, is as follows:

"Anna R. Miller and her husband, in consideration of eight thousand and no-100 dollars paid by Farmers Trust and Savings Bank of Laurens, Pocahontas County, Iowa, do sell and convey unto the said mortgagee the following real estate in the county of Clay, Iowa, to wit: [Here follows the technical description of the land] and also all of the rents, issues, use and profits of said land and the crops raised thereon from now until the debt secured thereby shall be paid in full. * * * It is also agreed that in case of default in any respect the mortgagee, * * * either before, or on the commencement of an action to foreclose this mortgage, or at any time thereafter, shall be entitled to the appointment of a receiver who shall have the power to take and hold possession of the said premises and to rent the same, collect the rents and profits therefrom, for the benefit of said mortgagee, and such right shall in no event be barred, forfeited or retarded by reason of a judgment, decree or sale in such foreclosure, and the right to have such receiver appointed upon application of the mortgagee shall exist regardless of the fact of solvency or insolvency of the debtor or mortgagor, and regardless of the value of said mortgaged premises or the waste, loss and destruction of the rents and profits of said mortgaged premises, during the statutory period of redemption."

This instrument was duly recorded on the 21st of April, 1923, in the Chattel Mortgage Index, Book 1, page 170, of the records in the recorder's office of Clay County, Iowa.

On the 16th day of September, 1925, plaintiff filed a petition in the district court of Clay County, asking foreclosure of this mortgage as a chattel mortgage and as a real estate mortgage, and asked the appointment of a receiver. Clifford Miller, son of this codefendant, claims that, on the 14th of September, 1925, he purchased from Anna R. and R. F. Miller about 135 acres of corn standing in the field at that time, and gave a valuable consideration therefor; and claims to be the owner of this crop.

The plaintiff claims that the above instrument referred to constituted a chattel mortgage on said crop, and asks the foreclosure of the same. So far as this case is concerned, this is the controlling question.

The best test for ascertaining whether or not this instrument constitutes a chattel mortgage is to strike therefrom all of that part which constitutes a real estate mortgage, and then determine whether or not what is left will constitute a valid chattel mortgage. The granting clause of this instrument thus treated will read as follows:

"Anna R. Miller and husband do hereby sell and convey all of the rents, issues, use and profits and the crops raised thereon [the land described therein] from now until the debt thereby secured shall be paid in full."

Appellants rely on the proposition that, if the defeasance clause is read in connection with this instrument as a whole, a chattel mortgage is not created thereby; and cite, as supporting their contention, Swan v. Mitchell, 82 Iowa 307, 47 N.W. 1042; Farmers & Merch. St. Sav. Bank v. Kriegel, 196 Iowa 833, 195 N.W. 624; Hakes v. North, 199 Iowa 995, 203 N.W. 238; Motor Finance Co. v. Wenzlaff, 197 Iowa 314; Cooper v. Marsh, 201 Iowa 1262, 207 N.W. 403; Young v. Stewart, 201 Iowa 301, 207 N.W. 401; Robertson v. Roe, 203 Iowa 654, 213 N.W. 422. Some of the cases just cited are not cited by appellants, but are similar to the cases which they have cited. An investigation of each of the cited cases and other cases in this state holding similarly shows that in none of them was the instrument similar to the one under consideration here. The distinctive feature of this case is that the granting clause of this instrument specifically covers crops raised on the land "from now until the debt secured thereby shall be paid in full." In none of the cases cited have we been able to find an instrument where the granting clause covers the crops; hence the cases cited and relied upon have no application to the case at bar.

That a chattel mortgage which covers property not in existence at the time it is made is not void, see Scharfenburg v Bishop, 35 Iowa 60; Brown v. Allen...