Johnson v. Pennell

• Decision Date: 14 December 1885
• Citation: 25 N.W. 874,67 Iowa 669
• Parties: JOHNSON v. PENNELL AND OTHERS.
• Court: Iowa Supreme Court

67 Iowa 669

25 N.W. 874

JOHNSON

v.PENNELL AND OTHERS.

Supreme Court of Iowa.

Filed December 14, 1885.

Appeal from Clarke district court.

Plaintiff is the owner of a judgment for $1,352.98 and costs, obtained by the First National Bank of Osceola against the defendants Edson Pennell and C. G. Pennell. He brought this action to subject certain real estate, the title to which is alleged to be in defendant Charles R. Simmons, to the payment of said judgment, on the ground, as is alleged, that the Pennells are the actual owners of the property, and the title thereto is held by Simmons in trust for them, and is so held for the purpose of fraudulently covering the property and preventing its appropriation for the payment of the debts of the Pennells. The district court dismissed the petition. Plaintiffs appeal.W. M. Wilson, for appellant, S. S. Johnson.

M. L. Temple, for appellees, Edson Pennell and others.

REED, J.

It is alleged in the petition that the Pennells were the owners of a large quantity of lands in Clarke county, the title to which was held by themselves, and that, being involved in debt, they entered into a corrupt agreement with Simmons, by which they agreed to execute to him a sham mortgage on the premises; and that, in pursuance of this agreement, they did execute and deliver to him a mortgage thereon, but that the same was made without any consideration, and was received by Simmons solely for the purpose of hindering and delaying the creditors of the Pennells in the collection of their debts; and that he (Simmons) subsequently instituted a suit for the foreclosure of said mortgage, and obtained a judgment foreclosing the same, and an order for the sale of the mortgaged premises on special execution; that such execution was subsequently issued on said judgment, and the premises were offered for sale thereon, and were bid in by Simmons at the amount of the judgment and costs, and the execution was returned satisfied, and after the expiration of the year for redemption a sheriff's deed was executed to Simmons, conveying the premises to him. The answer of the defendants is a general denial of all the allegations of the petition.

1. Plaintiff introduced in evidence a deed from John M. Gregg, conveying the land in question to defendant C. G. Pennell, also the record of a judgment rendered in the circuit court in an action wherein the defendant Charles R. Simmons was plaintiff and C. G. Pennell and Charles E. L. Wilder were defendants. By this decree the plaintiff therein recovered judgment against C. G. Pennell for $4,222.20, and the costs of the action. It also foreclosed a mortgage on the premises in question given to secure the indebtedness, and establishes the same as a superior lien on said premises to the lien or interest therein of the defendant Wilder. He also introduced the judgment docket, the sale-book, and a sheriff's deed showing the issuance of a special execution on said judgment, a sale of the property thereunder to Simmons, and a subsequent conveyance of it to him by the sheriff. Neither the note or mortgage on which the judgment was rendered, nor the pleadings in the case, were introduced in evidence, and there is nothing in the recitals of the judgment indicating to whom the note and mortgage were originally executed. Plaintiff proved that no mortgage from Pennell to Simmons was recorded in the office of the recorder of deeds of the county. He also introduced evidence tending to prove that Simmons' circumstances were such that it is impossible that he should have advanced to Pennell the...