Hollingsworth v. Holbrook

• Decision Date: 19 May 1890
• Citation: 80 Iowa 151,45 N.W. 561
• Parties: HOLLINGSWORTH v. HOLBROOK ET AL.
• Court: Iowa Supreme Court

80 Iowa 151

45 N.W. 561

HOLLINGSWORTH

v.HOLBROOK ET AL.

Supreme Court of Iowa.

May 19, 1890.

Appeal from district court, Webster county; S. M. WEAVER, Judge.

Action to recover the possession of specific personal property. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendants appeal.R. M. Wright, for appellants.

ROBINSON, J.

The petition alleges that plaintiff is the owner of a Buckeye power and grinder, a Hocking Valley corn-sheller, one cow, and a “two and one-half inch Studebaker wagon,” and entitled to the immediate possession thereof; that the property described was wrongfully taken from his possession by defendant John Holbrook, by direction of defendant B. M. Halstead, under a pretended chattel mortgage purporting to have been executed by plaintiff, and is wrongfully detained by them; that the pretended mortgage was never executed by plaintiff, and is a forgery and void. Judgment for the property is demanded. The answer contains a general denial, modified by the admission that the property described in the petition was detained by defendants when the suit was brought, and that it was taken by defendants at the time alleged under a chattel mortgage executed by plaintiff to one H. F. Halstead, and owned by defendant B. M. Halstead. For a second defense the answer alleges that on the 23d day of April, 1888, plaintiff, being indebted to said B. M. Halstead, made to H. F. Halstead his promissory note, and a chattel mortgage to secure the same which covered the property described in the petition; that, after the maturity of the note, it was wholly unpaid, and was delivered with the mortgage to defendant Holbrook for collection; that the property was taken for the purpose of foreclosing the mortgage, and held until the commencement of this action; and that the interest of defendants in the property is measured by the amount due on the mortgage debt, and certain costs which accrued in the attempted foreclosure. For a further defense the answer avers that the mortgage was made to H. F. Halstead, but for the use and benefit of defendant B. M. Halstead, and that the indebtedness secured thereby is bona fide, and wholly unpaid; that if, after the execution of the mortgage, it was in any manner altered, the alteration was the work of a stranger, and was a mere spoliation, and in no manner affected the validity of the instrument. The reply admits that plaintiff executed a chattel mortgage to H. F. Halstead on the date named which included the property described in the petition, excepting the wagon, but alleges that, after it was delivered, it was fraudulently altered, without the knowledge or consent, and against the will, of plaintiff, by the insertion of the description of the wagon; that the alteration was made, as plaintiff believes, by one D. H. Halstead, who, as agent for the mortgagee, drew and accepted the mortgage; that plaintiff never knew of, nor assented to, the alteration; that it was fraudulent, and made for the purpose and with the intent to defraud; and that it rendered the mortgage void. Other averments of the pleadings need not be set out.

1. There was evidence which authorized the jury to find that the description of the wagon was inserted in the mortgage in controversy after it was executed and delivered, without the knowledge of the plaintiff; that he has never assented to nor ratified the alteration; and that as to him it was fraudulent. But appellant contends that the estate created by the mortgage could have been conveyed without it; hence that, although the fraudulent alteration of the mortgage after delivery may have had the effect to destroy the instrument, yet it did not operate to reinvest the plaintiff with the estate which had been transferred to the mortgagee. The authorities are not entirely in harmony as to the effect which should be given to the fraudulent alteration of an instrument of conveyance. Where such an instrument has fully accomplished the purpose for which it was executed before the alteration was made, we think the interest it transferred would not be affected by the alteration. Woods v. Hilderbrand, 46 Mo. 284;Hatch v. Hatch, 9 Mass. 307; 1 Amer. & Eng.Cyclop. Law, 502; 1 Greenl. Ev. § 568; Chessman v. Whittemore, 23 Pick. 231;Kendall v. Kendall, 12 Allen, 92. But the authorities recognize a difference between covenants which are executed and those which are executory. A fraudulent and material alteration of an instrument of conveyance will destroy the right of recovery on its executory covenants. In this case the mortgage conveyed to the mortgagee an interest in the property described in the mortgage at the time of its delivery, and the right to the possession thereof. Gordon v. Hardin, 33 Iowa, 550; Code, § 1927. But the interest thus acquired was not the unqualified and absolute ownership. Kern v. Wilson, 73 Iowa, 490, 35 N. W. Rep. 594. Possession of the property was not in fact taken until after the alleged alteration was made. The right to take possession, and to sell the property and pay the mortgage debt, depended upon the covenants of the mortgage. If the alteration in question destroyed those covenants, it necessarily terminated the right of the mortgagee to the remedy which they provided. To say that the mortgagee acquired a vested right to that remedy when the...