Moody v. Dryden

• Decision Date: 08 October 1887
• Citation: 34 N.W. 210,72 Iowa 461
• Parties: MOODY ET AL. v. DRYDEN ET AL
• Court: Iowa Supreme Court

34 N.W. 210

72 Iowa 461

MOODY ET AL. v. DRYDEN ET AL

Supreme Court of Iowa, Des Moines

October 8, 1887

Appeal from Jasper Circuit Court--HON. GEO. W. CROZIER, Judge.

THE plaintiff J. W. Moody brought an action against the defendant W. W. Dryden and others to foreclose a mortgage upon an undivided half of certain mill property. Afterwards other actions were consolidated with it. The Oskaloosa National Bank intervened, as claiming to hold as collateral the notes secured by the Moody mortgage. G. H. Barbour & Co. claim a mechanic's lien upon the premises as paramount to the Moody mortgage, and as paramount to certain other alleged mechanic's liens. The court granted a foreclosure of the Moody mortgage, and decreed the lien of Barbour & Co. to be inferior to the mortgage, and, as to a part of the property inferior to the other liens. They appeal.

AFFIRMED.

Kerr & McElroy, for appellants.

Meredith & Ogg, for other mechanic's lien-holders, appellees.

Winslow & Varnum, for Oskaloosa National Bank, appellee.

ADAMS CH. J. SEEVERS, J., took no part in the decision.

OPINION

ADAMS, CH. J.

In August, 1884, the mill property in question was owned by one Heston and one Dryden; each owning an undivided half. About the fifteenth day of that month Heston sold his undivided half to D. P. Clark, and Dryden his undivided half to J. H Fish. Prior to that time Dryden had executed to Moody, upon his half, the mortgage now sought to be foreclosed; but the same had not been recorded at the time of the sale to Fish, and was not recorded until September 10, 1884. In the meantime Barbour & Co., in pursuance of a contract with Fish, had commenced furnishing lumber for the erection of a new mill which was to be built by him and Clark as partners. The lien which they are attempting to establish is for lumber. They claim that their lien is paramount to the Moody mortgage, on the ground that they had no actual knowledge of it at any time while they were furnishing the lumber, and no constructive notice of it by reason of the recording until they had commenced furnishing the lumber, and their lien had attached. The Oskaloosa National Bank, while admitting a verbal contract of sale by Dryden to fish, deny the allegation of Barbour & Co. that he became the owner; and, in argument, the counsel for the bank insist that the contract was never completed, and that the title to Fish never passed. So far as the undivided half of the property is concerned which is covered by the Moody mortgage, Barbour & Co. claim through Fish. Their lien could attach upon only such interest in the property as had been acquired by Fish. We come, then, to inquire as to whether it is true, as the counsel for the bank insist, that the contract between Dryden and Fish was never completed.

The property is situated in Lynnville, in Jasper county. Fish resided in Newton. At the time of his purchase he went to Lynnville, and the parties employed one Arnold, a notary public, to prepare the papers necessary for the completion of the trade. Fish was to give his notes for the purchase-money and notes were prepared and signed by him, and left, as we infer, in Arnold's hands. Fish then returned to Newton. A deed was drawn up, and, three days later, was acknowledged by Dryden, and left in Arnold's hands. A mortgage was to be executed by Fish as a part of the trade, and Arnold was to prepare it. Whether he did prepare it or not does not appear. Fish had returned to Newton, and, so far as the evidence shows, he never gave any further attention to any of the papers which had been...