Miller v. Wilson

• Decision Date: 08 June 1887
• Citation: 71 Iowa 610,33 N.W. 128
• Parties: MILLER v. WILSON AND OTHERS. KINNERSLY v. LEE AND OTHERS.
• Court: Iowa Supreme Court

71 Iowa 610

33 N.W. 128

MILLER

v.WILSON AND OTHERS.

KINNERSLY

v.LEE AND OTHERS.

Supreme Court of Iowa.

June 8, 1887.

Appeal from district court, Van Buren county.

In 1880, J. J. Kennersly was the owner of certain real estate on which was situated a mill, the machinery in which was propelled by water. In December of that year he sold the real estate to A. P. Lee; and, as a large portion of the purchase money was not paid, Kinnersly and Lee entered into a written contract whereby the former reserved and was entitled to a vendor's lien on the premises as security for the payment of the purchase money. This contract was duly recorded on the second day of December, 1880. After such purchase, J. W. Wilson became interested therein as a partner with Lee, and it was determined to operate the mill wholly or in part with steam-power. Wilson, for the partnership, purchased of Fowler, in Illinois, a steam-engine and other machinery, partly at least on credit, and the same was shipped to Keosauqua for the purpose above stated. Miller claims that Wilson & Lee became indebted to him on or about June 1, 1881, and on the thirteenth of that month they gave him a mortgage on said engine and other machinery to secure such indebtedness. The mortgage was duly recorded on the day it was executed. Miller claims that such engine and machinery, at the time the mortgage was given, was personal property. Afterwards, in July, Wilson & Lee gave Fowler a mortgage on the same machinery as was covered by the Miller mortgage, and Fowler also claims that the same, at the time his mortgage was executed, was personal property.

The first of the above actions was brought to foreclose Miller's mortgage. Fowler and Kinnersly were made defendants. The former, in a cross-petition, asked a foreclosure of his mortgage, and Kinnersly pleaded that such engineand other machinery was attached to and had become a part of the real estate, and therefore his vendor's lien was the prior lien. The second action was brought to foreclose such vendor's lien, and Miller and Fowler were made defendants, and the issues therein were the same, in substance, as in the other action. Evidence was taken in the first action only, which by agreement was considered in the second action, and both were submitted together. They, however, were not consolidated, and separate judgments were entered in each. The court found and determined in the first action that the Miller mortgage was a valid lien on the property therein described, and foreclosed the same, and also held it was prior to the liens of Fowler and Kinnersly. The court foreclosed the Fowler mortgage, and held it was prior to the lien of Kinnersly. The latter and Fowler appeal. In the second action the court foreclosed Kinnersly's lien on the real estate, and in other respects the judgment is the same as in the first named action. From this judgment Kinnersly and Fowler appeal.

Wherry & Walker, for Kinnersly.

Wm. Moore, for Fowler.

Sloan, Work & Brown, for Miller.

SEEVERS, J.

1. Counsel for the appellants insist that under the issues it becomes necessary to determine whether there was any consideration for the Miller mortgage; and, if so, whether the indebtedness secured thereby has not been paid. Counsel for the appellee insist that no such defense as a want or failure of consideration is pleaded, and we incline to think the...