McConnell v. Denham

• Decision Date: 10 October 1887
• Citation: 72 Iowa 494,34 N.W. 298
• Parties: MCCONNELL AND ANOTHER v. DENHAM AND ANOTHER.
• Court: Iowa Supreme Court

72 Iowa 494

34 N.W. 298

MCCONNELL AND ANOTHER

v.DENHAM AND ANOTHER.

Supreme Court of Iowa.

October 10, 1887.

Appeal from circuit court, Mahaska county.

Action in equity, and judgment for the defendants, and plaintiff appeals.John F. & W. R. Lacey, for appellant.

Lafferty & Morgan, for appellees.

SEEVERS, J.

It is stated in the petition that the plaintiff recovered a judgment against the defendant Denham, on which an execution was issued, and levied on certain personal property on which he had executed a mortgage to the defendant Wilcox, and in substance it is stated the mortgage is void as against the creditors of the mortgagor; that, after the levy upon said property, the defendant Wilcox served upon the sheriff a notice that she claimed it under the mortgage, and thereupon the possession of the property was surrendered to Mrs. Wilcox, without prejudice to the plaintiff's lien under the levy; that, while the property was in possession of Mrs. Wilcox, the plaintiff caused her to be garnished; that the plaintiff has no adequate remedy at law; and the relief asked is that a receiver be appointed to take charge of the property, and the amount due on the mortgage be ascertained, the mortgage be declared void, the property sold, and the plaintiff recover a judgment against Mrs. Wicox, and for general relief. In an amended petition it is stated that Mrs. Wilcox, when she obtained possession of the property, surrendered such possession to the mortgagor, and he has been using and selling the same, and had realized a large sum of money therefrom; that plaintiff had caused another execution to issue on said judgment, and had caused the property then in the hands of the mortgagor to be again levied upon; that the sheriff, by the direction of the plaintiff, surrendered the possession obtained to said mortgagee and her agents, Lafferty & Morgan, and the latter placed said property in the hands of the mortgagor; that, while said property was in the hands of Lafferty & Morgan, they were garnished, and they are made defendants. The relief asked was that a receiver be appointed, and, in addition thereto, relief substantially the same as in the original petition was asked, but no judgment or other relief was asked against Lafferty & Morgan. Afterwards another amended petition was filed, making W. P. Hawkins a defendant, and stating that he is in possession, and assumes the right to dispose of said property, and a judgment for $1,000 is asked against him, and that his right to said property be cut off and barred.

The mortgagor, Denham, and the mortgagee, answered the petition, asserted the validity of the mortgage, and that the indebtedness secured thereby was actually due and unpaid. They denied all fraud and conspiracy. Hawkins also filed an answer stating that he purchased and paid for said property in good faith, without notice of any of the matters stated in the petition, or amendments thereto, and that, prior to making the purchase, he had searched the records for liens against said property, but found none in favor of plaintiff against said property; and he asks that, as to him, the petition be dismissed. Lafferty & Morgan also filed an answer. Such, substantially, are the pleadings.

1. Counsel for the plaintiff fail to state in their printed argument the precise measure of relief they deem the plaintiff entitled to, or against whom a judgment is asked. This we greatly regret. We shall therefore...