Frost v. Rosecrans
| Decision Date | 06 June 1885 |
| Parties | FROST v. ROSECRANS |
| Court | Iowa Supreme Court |
Appeal from Cerro Gordo Circuit Court.
THIS is an action of replevin, in which the plaintiff claims to be the owner of certain store-goods and merchandise, which the defendant held as sheriff upon a writ of attachment, at the suit of a creditor of one Salisbury. The plaintiff's claim is founded upon three chattel mortgages executed by said Salisbury, and possession of the goods under said mortgages. The defendant claimed that the said mortgages were fraudulent, because they were intended by the parties thereto to be the means by which Salisbury could cheat, hinder, delay or defraud his creditors, and that the transaction amounted to a general assignment by Salisbury, with a fraudulent preference for plaintiff and other creditors. There was a trial by jury, which resulted in a verdict and judgment for the defendant. Plaintiff appeals.
REVERSED.
Bush Hurn & Kelley, for appellant.
Stanbery & Clark and Blythe & Markley, for appellee.
For several years prior to the second day of March, 1883, J. H Salisbury was engaged in keeping a general store at Clear Lake, Iowa. The plaintiff was during said time, and is now, a banker at the same place. On said second day of March, 1883 Salisbury executed to the plaintiff two chattel mortgages upon his stock of goods. One of the mortgages was for $ 3,200, and the consideration therefor was a loan of $ 1,200 in money, and a previous debt of $ 2,000 owing by Salisbury to Frost. The other mortgage was in the sum of $ 1,863.98, and was executed to Frost to secure the claims of certain creditors, which were then in Frost's hands for collection. On the ninth day of March, 1883, Salisbury executed another mortgage upon the said stock of goods to the North Star Boot & Shoe Company, to secure an indebtedness of about $ 1,000. These mortgages were all duly recorded very soon after they were executed. The defendant as sheriff levied the attachment on the goods on or about April 4, 1883, some time after all of the mortgages were recorded. The plaintiff became the owner of the North Star Shoe Company mortgage by assignment, before the levy of the attachment. There is no question but that all of these mortgages were made to secure valid debts and claims against Salisbury; and the evidence is without conflict that, for some time before the attachment was levied, Frost was in full possession of the goods, and that he held such possession under and by virtue of the chattel mortgages.
I. The defendant alleged that these mortgages were fraudulent as to the creditor represented by him, and the burden was upon him to prove the alleged fraud. After the defendant had introduced his evidence in chief, the plaintiff was called as a witness in his own behalf, and in the course of his direct examination he was asked these questions The defendant objected to these...
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