Marder v. Wright

• Decision Date: 26 October 1886
• Citation: 29 N.W. 799,70 Iowa 42
• Parties: MARDER AND OTHERS v. WRIGHT AND OTHERS.
• Court: Iowa Supreme Court

70 Iowa 42

29 N.W. 799

MARDER AND OTHERS

v.WRIGHT AND OTHERS.

Supreme Court of Iowa.

October 26, 1886.

Appeal from Sac district court.

This is an action in equity on three promissory notes executed by the defendants Wright and Bennett, and to enforce a vendor's lien on certain personal property. Judgment was rendered in the district court in favor of plaintiff, against the makers of said notes, for the amount thereof; but they were denied any relief against defendant Schaller or the property, and they appealed.W. A. Helsell, for appellants.

Charles D. Goldsmith, for appellees.

REED, J.

Plaintiffs alleged in their petition that the notes sued on were given for the price of the presses, type, and other printing materials in a printing office at Odebolt, Iowa, which they sold to the defendants Wright and Bennett, and that they have a vendor's lien on said property. They also allege that defendant Schaller claimed some interest in the property, but that his interest was junior to their lien for the purchase money thereof, and in addition to their prayer for judgment for the amount of the indebtedness they asked that their lien on the property be adjudged superior to any interest of defendant Schaller therein, and that it be sold on special execution for the satisfaction of their debt.

Defendant Schaller answered, admitting that plaintiffs sold the property to his co-defendants, and that they gave the promissory notes sued on for the price thereof, but denying that plaintiffs have any lien on the property therefor; and he alleged that, after said sale by plaintiff, defendant Wright sold his interest in the property to defendant Bennett, and that subsequently to that transaction Bennett executed to Wright a chattel mortgage on the property to secure an indebtedness of $2,000. He also alleged that before the maturity of said indebtedness Wright assigned the promissory notes evidencing the same and said mortgage to the First National Bank of Chicago, and that he subsequently purchased the same from said bank, and that neither he nor the bank had any notice that plaintiff held a lien on the property; also that, after this purchase of said notes and mortgage, he foreclosed the mortgage by an action in the district court, and that the property was sold on special execution in said foreclosure proceedings to satisfy said indebtedness, and that he purchased the same at such sale.

Plaintiffs filed a reply, in which they alleged that the assignment of said notes and mortgage by Wright to said bank was made as collateral security for a debt he was owing the bank, and that, after said assignment was made, Wright made a general assignment of all his property for the benefit of his creditors, and that defendant was by the court appointed assignee of said estate, and qualified and entered upon the duties of such trust, and that, while he was acting as such assignee, the bank turned over to him said notes and mortgage, together with a large number of other notes which Wright had assigned to it as collateral security; and they prayed that defendant be held to be a trustee of the property for their benefit, and that he be required to account to them therefor, and for judgment against him for the amount of their claim against Wright. The evidence shows that defendant received the collateral notes and mortgage from the bank after his appointment and qualification as assignee under Wright's general assignment. The real transaction between defendant and the bank was the purchase by the former of a...