Levitt v. Brendel

• Court: Iowa Supreme Court
• Writing for the Court: LADD
• Citation: Levitt v. Brendel, 163 Iowa 67, 144 N.W. 19 (Iowa 1913)
• Decision Date: 22 November 1913
• Parties: LEVITT v. BRENDEL ET AL.

163 Iowa 67

144 N.W. 19

LEVITT

v.BRENDEL ET AL.

Supreme Court of Iowa.

Nov. 22, 1913.

Appeal from District Court, Polk County; Chas. S. Bradshaw, Judge.

Suit against Louis Brendel on promissory note and foreclosure of chattel mortgage securing payment thereof. James C. Brendel answered and by way of cross-petition alleged that he had purchased the property covered by the mortgage prior to the execution of the mortgage and prayed that he be adjudged the owner thereof. The petition was dismissed and the property awarded to James C. Brendel. The plaintiff appeals. Affirmed.Fred F. Keithley, of Des Moines, for appellant.

Dale & Harvison, of Des Moines, for appellees.

LADD, J.

On December 29, 1910, Louis Brendel borrowed $330 of the plaintiff, giving his promissory note therefor, and to secure same executed a chattel mortgage covering six mares and two cows. Foreclosure of this mortgage is the purpose of this suit. James C. Brendel, son of Louis, by cross-petition alleged that prior thereto and about December 15, 1910, he had purchased the interest of Louis in said stock and prayed that he be adjudged owner thereof. The plaintiff in reply averred that the sale by Louis to James, if any, was fraudulent, that James was estopped from setting up any claim to the property, and that plaintiff in taking said mortgage was an innocent purchaser and protected by the recording act. It appeared from the undisputed evidence that James moved on his father's farm near Polk City in February, 1906, under an oral arrangement that each should furnish one-half of the personal property and share equally the profits, his “work on the farm was pitted against the farm,” and he was to work and handle the stock, and when Louis had received enough above expenses to pay him $6,500, James was to have the place. The farm consisted of 156 1/2 acres, and all the proceeds save James' living expenses and those of his family were turned over to his father. The latter purchased the live stock, giving his own note therefor when not paying cash, and paid for it out of the returns from the farm. Accurate accounts do not appear to have been kept, for James testified that he had no account for three years, that proceeds of sales for 1909 were something over $3,600 and over $2,300 in 1910. After the sales in 1910, stock and tools worth $2,700 or $2,800 remained on the place. On Sunday, December 11th of that year, Conrad Hug called on James and inquired when his father would be out to the farm and, after some talk, said that Louis Brendel owed him two notes, one for $360 and the other for $500 with interest, and, according to the testimony of James, his father had said he owed nothing to the neighbors about Polk City, and he came to Des Moines to see his father two days later, who at first insisted he owed no one, but finally recalled the notes to Hug, and proposed to Louis: “I'll tell you what I'll do to fix that up; you give a note in full and borrow the money, and I will transfer my undivided interest in the personal property on that farm, and that includes horses and hogs, cattle and implements, and I will give you a bill of sale, and I says, ‘Will you do that?’ and he says, ‘I will,’ and I says, ‘You better do that.’ It was getting pretty near train time, and he says, ‘You go home, and I will have that drawn up to-morrow and send it to you,’ and I went home thinking he would send the bill of sale.” James saw Hug and told him what his father had said, and they arranged to meet at the Polk City Bank the next day, when he gave his note for the amount owing Hug by his father, and Hug indorsed it over to the bank, which credited Hug with such amount. Hug confirmed the testimony of James in so far as it related to...