Magirl v. Magirl

• Decision Date: 14 October 1893
• Citation: 89 Iowa 342,56 N.W. 510
• Parties: MAGIRL v. MAGIRL ET AL.
• Court: Iowa Supreme Court

89 Iowa 342

56 N.W. 510

MAGIRL

v.MAGIRL ET AL.

Supreme Court of Iowa.

Oct. 14, 1893.

Appeal from district court, Delaware county; D. J. Lenehan, Judge.

Action in equity to enjoin defendant sheriff from selling certain mortgaged personal property, and asking for the foreclosure of a real-estate mortgage, also of a chattel mortgage. Demurrer to the petition. Demurrer overruled, and defendant sheriff appeals.Yoran & Arnold, for appellant.

Bronson & Carr, for appellee.

KINNE, J.

1. Defendant Dennis R. Magirl, on November 3, 1890, executed to plaintiff his certain mortgage upon real estate therein described. Said mortgage was filed for record on the same day On the same day defendant executed and filed for record a chattel mortgage on certain property to plaintiff. Each mortgage expressed a consideration of one dollar. The chattel mortgage contained the following provision: “To be void on condition that the said Dennis R. Magirl shall pay or cause to be paid all debts and liabilities that have been secured for him by said second party, [plaintiff,] and save and protect said second party from the payment of any and all debts which he has obligated himself to pay on first party's account, as surety in fact or otherwise for first party.” The real-estate mortgage contained a like provision. The petition avers that in fact the plaintiff had, prior to the execution of the mortgage, obligated himself to pay, as surety or otherwise for the defendant, certain notes, which are set out, and on which there is due more than $3,000; that the mortgages were taken to secure plaintiff against loss on account of his signing said notes, and obligating himself for the payment of the same; that defendant sheriff, on April 4, 1891, and by virtue of two executions, issued out of the office of the clerk of Delaware county, Iowa levied on the property, real and personal covered by said mortgage, to satisfy certain judgments rendered against defendant Magirl. It is also averred that notice was on May 9, 1891, served upon the sheriff, informing him of the several sums still unpaid, and for which said mortgages were given as security, and claiming a lien on said property, the right of possession of the same, and the release of said levies; after which the said sheriff released the real estate from said levies, and refused to release the personal property; that said sheriff had actual notice, when he made the levy on said personal property, of the existence of the said mortgage lien thereon; that said levy was wrongful. Other necessary allegations were made for the issuance of an injunction. It was prayed that the lien of plaintiff's mortgages be decreed first, and that they be foreclosed; that an injunction issue restraining said execution sales; that the liens be decreed void, etc. An injunction issued as prayed. The defendant sheriff demurred to the petition on the ground that the facts stated did not entitle plaintiff to the relief demanded. The sheriff alone appeals.

2. It is insisted that the parties to this mortgage must have known all the facts touching the indebtedness sought to be secured thereby, and that, by intentionally withholding them, they have been guilty of such concealment as amounts to a legal fraud, vitiating the instrument, so far as creditors are concerned. We do not think such a result necessarily follows. Even if it be conceded that the facts relating to the indebtedness were within the knowledge of the parties, there may have been no intentionalconcealment of them, even though they were not fully set out. It occurs to us that whether or not the mere failure to fully describe the debt would amount to a fraud would depend upon circumstances to be disclosed by the evidence,--it is a question of fact. Doubtless there might be a case where such failure to fully describe the debt might be strong evidence of fraud, but this description, on its face, is not of such a character as to render the mortgage fraudulent.

3. It is contended that the description of the debt was so indefinite as not to put creditors upon inquiry. We have already set out the conditions of the mortgage in this respect. It may be conceded that the better and safer practice is to specifically set out or to describe the indebtedness sought to be secured; yet the failure...