Leonard v. Sehman
| Decision Date | 26 June 1928 |
| Docket Number | No. 38937.,38937. |
| Citation | 206 Iowa 277,220 N.W. 77 |
| Parties | LEONARD v. SEHMAN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dallas County; E. W. Dingwell, Judge.
Suit on a promissory note. Defendant admitted the execution of the note, and alleged that he had delivered to the plaintiff certain bonds as collateral security for the payment of said note, which bonds defendant claims had been converted by the plaintiff. The cause was tried without a jury, and the court found for the defendant and dismissed plaintiff's petition. Plaintiff appeals. Affirmed.Guy A. Miller, of Des Moines, for appellant.
Emmert & James, of Des Moines, for appellee.
This cause was submitted upon a stipulation of facts, from which it appears that, on or about the 1st day of May, 1921, the appellee borrowed $500 from the appellant, and executed and delivered to the appellant his promissory note for said amount, and to secure the payment thereof delivered to the appellant as collateral security five bonds of the Farm Publishing Company of the par value of $100 each. The said bonds were part of a series of a total of $51,000, executed by the Farm Publishing Company, all of which were secured by a trust deed of the property of the said Farm Publishing Company. Subsequently the trustee brought an action to foreclose the said trust deed for the benefit of all of the bondholders, and in due time a decree was entered directing the sale of the property of the said Farm Publishing Company that was security for said bonds under the said trust deed. A receiver was appointed to sell said property. The mortgaged property was appraised and sold at receiver's sale. The appellant, acting for himself and certain other bondholders, bid for said property $2,500 more than the outstanding bonds, and delivered all of said bonds to the receiver, and paid said additional amount of $2,500 in cash. Prior to said sale, the appellant executed and delivered to the receiver a written instrument authorizing the receiver to select a person to represent him and other bondholders in bidding for said property at said receiver's sale. In said written instrument the appellant described himself as being “the owner” of said bonds in question. After said sale, the receiver executed and delivered to the appellant, “as a representative of said bondholders,” all of the property sold under said foreclosure. The sale was subsequently approved by the court. Subsequently the appellant and the other bondholders, but not including the appellee, took possession of said property, and have continued to operate the business through one Talbot as their agent, and, at the time of the trial of this cause, it appeared that unpaid debts amounting to approximately $1,000 had been incurred in the operation of said business. The appellant did not consult the appellee in any manner with reference to the disposal of said bonds, nor did appellee have any notice of said sale, nor did he in any way give his consent thereto.
[1][2] I. The first question involved here is whether or not, upon this state of facts, the court erred in finding that the appellant had been guilty of a conversion of the appellee's said bonds which were pledged as collateral security with the appellant. The appellant made no attempt to foreclose the pledge by proceeding in any manner as authorized by Code, c. 524. Without any notice whatever to appellee, he assumed to take control of the said bonds which had been pledged with him as collateral security for appellee's debt and to exercise all the rights of an owner of said bonds. He surrendered them to the receiver appointed under the foreclosure of the trust deed, and placed the same wholly beyond the control of himself or the appellee. In the recent case of Mulenix v. Fairfield National Bank, 203 Iowa, 897, 209 N. W. 432, we said:
Under the stipulated facts of this case, it must be held as a matter of law that the appellant converted the bonds, which had been pledged with him as security by appellee. He placed the same wholly beyond the dominion and control of either himself or the appellee.
It is contended in argument that the appellant did no more than change the form of security, and that appellee has a right to an undivided interest in the property which was purchased under the foreclosure sale. It is apparent that there is such a change in the character of the property pledged as to constitute a conversion. The appellee pledged with the appellant certain bonds which were transferable readily by delivery. These bonds have been disposed of by the appellant and placed beyond the possibility of being restored to the appellee. It is scarcely a sufficient answer to the claim of conversion to say that the appellee might, under proper proceedings, ratify the action of the appellant and obtain an undivided...
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