Jordan v. Lindrum

• Decision Date: 23 March 1881
• Parties: JORDAN ET AL v. LENDRUM ET AL
• Court: Iowa Supreme Court

8 N.W. 311

55 Iowa 478

JORDAN ET AL v. LENDRUM ET AL

Supreme Court of Iowa, Des Moines

March 23, 1881

Appeal from Polk Circuit Court.

THIS is an action of replevin of certain personal property of the alleged value of $ 593.00. The cause was tried to a jury, and verdict and judgment were rendered for the defendants. The plaintiffs appeal.

REVERSED.

Seward Smith and R. N. Baylies, for appellants.

Nourse Kauffman & Jackson and W. O. Curtiss, for appellee.

OPINION

The facts are stated in the opinion.

DAY, J.

I. The evidence tends to establish the following facts: Prior to the year 1877, B. P. Jordan, the father of the plaintiffs, was in the stock business and estimated to be worth $ 15,000 over his debts. In the fall of 1875 he gave to his daughter Ida $ 500, and in the spring of 1876 to his daughter Hattie $ 200. At the time of these gifts Ida was about fourteen and Hattie about twelve years of age. In 1877, B. P. Jordan failed in business. At that time he was indebted to the Iowa National Bank of Des Moines on two promissory notes, one for $ 1,000 due July 11, 1877, and one for $ 2,000 due July 19, 1877. On both these notes his brother H. C. Jordan was surety. He was indebted to the Iowa National Bank on another note for $ 1,000 dated May 19, 1877, and due ninety days after date, on which his brother George B. Jordan was surety. On the 9th day of June, 1877, B. P. Jordan executed to H. C. Jordan a bill of sale of his personal property not exempt from execution, consisting of five thousand bushels of corn in the crib, nineteen head of hogs, three cows, two heifers, three colts, one mare, twenty cords of wood, and the grass, potatoes and other vegetables and crops growing on his farm. At the same time he executed a deed to H. C. Jordan for forty acres of land, being all the real estate owned by him except his homestead. In consideration of these conveyances, H. C. Jordan agreed to take up and satisfy the two notes on which he was surety. The bill of sale was duly acknowledged and filed for record on the day of its execution. H. C. Jordan then went to the bank and executed his own note, with surety, in discharge of the two notes above mentioned. After the bill of sale the property remained on the farm of B. P. Jordan as before. H. C. Jordan sold the corn in the crib and the wood; he killed some of the hogs, and sold the mare to B. P. Jordan's sister-in-law, who lived in his family. The grass, potatoes and vegetables were consumed on the farm, and the cows were milked there. On the 20th of September, 1877, H. C. Jordan executed to the plaintiffs Ida and Hattie Jordan a bill of sale for a portion of the property embraced in the bill of sale to him from B. P. Jordan, to-wit: twenty-five acres of corn, one large roan cow, one red cow, two yearling heifers and fifteen head of hogs. The plaintiffs were at school at Indianola, when this bill of sale was executed. The negotiation was conducted by their mother as their agent, and the price, $ 250 or $ 260, was paid out of the money given them as aforesaid by their father. The property had never been off of the place, and it still continued to remain there after the execution of the sale. It is this property and its increase that the plaintiffs claim in this action. After the property was replevied it still remained upon the farm, and the next winter's meat of the family was killed from the hogs. B. P. Jordan bought one set of Fairbanks scales and had them put upon his farm. He owed $ 90 therefor. The plaintiffs paid this sum. After the payment the scales remained on the farm in the same situation as before. The plaintiffs in this action also claim these scales. The defendants claim all of this property in virtue of a levy upon the same, on the 25th day of August, 1878, as the property of B. P. Jordan, under an execution issued against him and George B. Jordan. The defendants insist that the property belongs in fact to B. P. Jordan, and that whatever interest the plaintiffs claim was obtained fraudulently for the purpose of placing the property beyond the reach of creditors.

The plaintiffs assign as error the giving of the following instructions at the request of defendants:

"10. It is also provided by the laws of the State that any sale of transfer of personal property, where the vendor retains actual possession thereof, is invalid and utterly void as against existing creditors without notice, unless a written instrument conveying the same is executed and acknowledged like conveyance of real estate, and filed for record in the county where the holder of the property resides. The object of this statute is to enable creditors or purchasers to ascertain, from the records of the county in which the debtor resides, what interest any party other than the debtor in possession has in such property. But it does not follow that such instruments so acknowledged and recorded are necessarily valid as to creditors; and the fact that the debtor remains in possession and use of the property as his own, even though conveyed by him by bill of sale duly acknowledged and recorded, is a badge of fraud, which it is proper for you to consider in determining upon the validity of such conveyance.

"11. You are further instructed that any conveyance by a debtor of his property under which the debtor is permitted by the vendee, by an understanding, either expressed or implied, to remain in the continuous use and enjoyment of the property conveyed, or a considerable part thereof, using and enjoying the same as before said conveyance, is fraudulent as to creditors, even though there be a good and valid consideration for such conveyance, and even though said conveyance be duly acknowledged and recorded.

"12. You are further instructed that any sale of property under which the vendor, by understanding, either express or implied, is permitted by the vendee to remain in possession of the property and exercise acts of control and ownership over it, and to use and dispose of, or convert to...