German Sav. Bank v. Armour Packing Co.

• Citation: 75 N.W. 503
• Parties: GERMAN SAV. BANK v. ARMOUR PACKING CO.
• Decision Date: 23 May 1898
• Court: United States State Supreme Court of Iowa

75 N.W. 503

GERMAN SAV. BANK

v.ARMOUR PACKING CO.

Supreme Court of Iowa.

May 23, 1898.

Appeal from district court, Polk county; W. F. Conrad, Judge.

Action in equity to recover the amount due on certain promissory notes, for the foreclosure of a chattel mortgage given to secure their payment, and for the appointment of a receiver of the mortgaged property. A receiver was appointed, there was a hearing on the merits, and a decree from which the defendant, the Armour Packing Company, appeals. Affirmed.A. L. Steele, for appellant.

Dowell & Parrish, for appellee.

ROBINSON, J.

The notes and mortgage upon which the plaintiff seeks to recover were made by H. F. Gross, for the Layman Cold-Storage Company; and the plaintiff alleges that it took possession of the mortgaged property, and that it is entitled to the foreclosure of the mortgage as against several attaching creditors, who are made parties defendant. The defendant, the Armour Packing Company, denies that Gross had authority to make the notes and mortgage on which the plaintiff relies; denies that the plaintiff took possession of the mortgaged property; and alleges that, if it did, such possession was taken with full knowledge that the packing company had then instituted attachment proceedings. That company claims by virtue of a writ of attachment, issued in its favor, against the coldstorage company, which is alleged to have been levied upon the mortgaged property before the mortgage was recorded, and without any knowledge of it. The principal question which the parties to this appeal seek to have determined is whether the plaintiff acquired an interest in the property in controversy, by virtue of the mortgage, which is superior to the lien of the packing company's attachment.

1. We are satisfied that a preponderance of the evidence shows that Gross was duly authorized to make the notes and execute the mortgage in suit, and that actual possession of the mortgaged property had been taken by the plaintiff before the writ of attachment of the packing company was levied. The officer who served the writ was informed by the representative of the plaintiff who was in possession under the mortgage, before any levy was made, that he held a mortgage upon the property. It may be that the mortgage was not shown to the officer, and that he did not know to whom it was executed, when he levied the writ, but he had such notice as would have caused a person of ordinary prudence to make such...