Lee County Savings Bank v. Snodgrass Bros.

• Decision Date: 12 March 1918
• Docket Number: 31265
• Citation: 166 N.W. 680,182 Iowa 1387
• Parties: LEE COUNTY SAVINGS BANK et al., Appellees, v. SNODGRASS BROTHERS, Appellees; CLAUDE E. WILSON, Intervener, Appellant
• Court: Iowa Supreme Court

166 N.W. 680

182 Iowa 1387

LEE COUNTY SAVINGS BANK et al., Appellees, v. SNODGRASS BROTHERS, Appellees; CLAUDE E. WILSON, Intervener, Appellant

No. 31265

Supreme Court of Iowa, Des Moines

March 12, 1918

Appeal from Davis District Court.--SENECA CORNELL, Judge.

THE appellant intervener is a mortgage creditor of the defendants. The appellees claim that they have priority over the mortgage by reason of the levy of an attachment. The trial court held this claim of priority good in part, and the intervener appeals.

Affirmed.

D. H Payne, T. J. Hysham, and Buel McCash, for appellants.

H. C Taylor and George B. Stewart, for appellees.

SALINGER J. PRESTON, C. J., LADD and EVANS, JJ., concur.

OPINION

SALINGER, J.

I.

The evidence fairly shows that the sheriff made a valid levy upon a part of the property in controversy. The evidence shows also that part of said property was not physically removed by the sheriff at the time it is claimed he made the levy. What he did do was to read the writ of attachment to the defendants, to tell them and their employees that the chattels were levied upon, and then leave all not physically moved in the possession of some of the defendant's employees, instructing them that they were keeping possession for him. This does not bring the case within Hibbard v. Zenor, 75 Iowa 471, 476, 39 N.W. 714, as appellant asserts, but it is more nearly within the rule of cases like Hamilton Bros. v. Hartinger, 96 Iowa 7, 64 N.W. 592.

We agree with the conclusion of the trial court that, when the transaction is viewed in the light of all the evidence and the attending circumstances, the acts of the sheriff were sufficient "to create a lien in favor of the plaintiffs as against the intervener."

II. The mortgage describes the property conveyed as being live stock, "including" steers, cows, calves, bulls, hogs, and sheep. Horses and mules were levied on, and appellees urge that the mortgage never included any horses or mules. It does cover live stock. The statement that live stock includes steers, cows, calves, bulls, hogs, and sheep is self-evidently true. But a correct enumeration of some things that the term "live stock" includes does not take from the total of what live stock embraces. If "live stock" ever includes horses and mules,--and it does,--it still includes them even though the term also includes cows and steers. This is not a description which limits the property covered to steers, etc., but one which declares that steers, etc., are part of the live stock mortgaged.

III. It is held in Reeves & Co. v. Columbia Sav. Bank, 166 Iowa 411, 147 N.W. 879, that, because of the provisions of Code Sections 2948 and 2959, the recording of a chattel mortgage does not give constructive notice if the certificate, though it purports to be made by a notary public, does not set forth the name of the county for which such official is a notary. Section 2948 declares that the officer taking the acknowledgment must endorse upon the instrument a certificate which shall set forth the title of the person before whom the acknowledgment was made. It further provides that the certificate must set forth that the person making the acknowledgment "acknowledged the execution of the instrument to be his voluntary act and deed." One requirement is precisely as mandatory as the other. To enforce both strictly is but in harmony with the general rule requiring strict compliance with provisions creating notice by construction. We are constrained to hold that the recording of the mortgage held by intervener did not impart constructive notice.

IV. That constructive notice was not effected is not material, because the appellees had actual notice of all that reading the mortgage would advise of. It is not pretended that the copy spread upon the record is not a true copy of the mortgage. The evidence satisfies us that the appellees, either by themselves or by agents, read that before any levy was attempted. While there is great conflict upon the point, we are satisfied that, before the levy was made, the sheriff and the appellee Huston were told what amounted to a statement that the property about to be levied on belonged to some unnamed person other than the attachment defendants,--at the least, that someone had a claim or lien upon said property,--and that, if levy was made, it would be at the peril of accounting to that other person. Now, when someone who is about to levy is told in general terms that there is a lien upon the property which is claimed to be superior to the levy, the law puts some duty upon the person who is thus warned. It will help to make clear what that duty is by pointing out what it cannot be. Such a warning does not require the one proposing the levy to search the world for evidence showing affirmatively that there is no prior lien. The creditor and his agents have no power to compel the mortgagor and mortgagee to sign a confession that the asserted mortgage is junior to the proposed levy. They cannot have a suit tried before levying to determine who has priority. It follows that all the creditor or the sheriff need do, when so warned, is to make effort within reason to ascertain the truth. Concretely put, if reasonable inquiry would disclose the mortgage is prior, then the levy is junior. What were appellees apprised of? In this state, recording a chattel mortgage is of no effect unless record be made in the office of the recorder of the county wherein the mortgagor lives when he executes the mortgage. We think the appellees had no notice of anything except what the mortgage recorded in Davis County disclosed, and reasonably suggested. No other mortgage was made. They were proposing to levy upon property found on the Kays farm, owned by the mortgagors. The mortgagors owned another farm known as the Snodgrass farm. The two farms are separated by distance, and are operated as separate farms. The Snodgrass farm lies in Sections 13, 14, 15, Range 12, Prairie Township, Davis County. The Kays farm lies in Sections 24 and 25, in the same township. When the appellee went to the record, he found a mortgage which covered:

"All live stock of any age, sex, color, and description, including steers, cows, calves, bulls, hogs and sheep now located on the farm of parties of the first part situated on Sections 13, 14, and 15, Range 12, Prairie Township, Davis County, Iowa." Or all such live stock as may be "at any time hereafter brought on the above described premises." Also all increase and additions thereto or live stock intermingled therewith, "or brought or located on the above described premises."

We need not determine what the rights of the parties would be, had the mortgage recited that the property mortgaged was all the live stock owned or possessed by the mortgagor, and that it was then situate upon Sections 13, 14, and 15, and further recited that it should cover all additions acquired by the mortgagor, or even if the declaration had been not more than that the mortgage conveyed all the live stock owned or thereafter to be owned by the mortgagors, no matter where found, and including that situate upon Sections 13, 14, and 15. We need not determine what the rights of the parties would be if the record copy and other facts known to appellees left it an open question whether the property then found on Sections 24 and 25 was intended to be covered by the mortgage.

The execution of a chattel mortgage does not raise the presumption that the mortgagor is the owner of goods covered by the mortgage, especially as against one not a party to the mortgage. Syck v. Bossingham, 120 Iowa 363, 94 N.W 920. A valid mortgaging of increase requires at least that the mortgagor have a present interest, at...