Perry v. Vezina

• Decision Date: 18 March 1884
• Citation: 18 N.W. 657,63 Iowa 25
• Parties: PERRY ET AL. v. VEZINA ET AL
• Court: Iowa Supreme Court

18 N.W. 657

63 Iowa 25

PERRY ET AL. v. VEZINA ET AL

Supreme Court of Iowa, Council Bluffs

March 18, 1884

Appeal from Lee Circuit Court.

PROCEEDING IN GARNISHMENT. The plaintiffs are judgment creditors of the defendant, Vezina. As such, they caused an execution to issue upon their judgment, and caused the defendant, Irwin, to be garnished. He appeared and answered, denying all indebtedness, and denying that he had property in his possession or under his control belonging to the judgment debtor. A stipulation of facts was also filed. The plaintiffs then moved for judgment against the garnishee upon the answer and stipulation of facts. The court overruled the motion and discharged the garnishee. From the order overruling the motion and discharging the garnishee the plaintiffs appeal.

AFFIRMED.

H. Scott Howell & Son, for appellants

W. T Rankin, for appellees.

OPINION

ADAMS J.

A short time previous to the institution of these proceedings, the judgment debtor, Vezina, was in trade in the city of Keokuk. On the 18th day of January, 1883, he made an assignment for the benefit of his creditors to the garnishee, Irwin. This property, including a stock of goods, passed into Irwin's hands. The plaintiffs, as garnishing creditors, seek to charge Irwin as garnishee, by reason of the possession of this property. They do not deny the execution of the instrument by which Vezina attempted to make an assignment, but they insist that it is to be taken in connection with a certain other instrument executed by Vezina, denominated a trust mortgage, and that, if so taken it must be held void, because, if the trust mortgage, so called, was a part of the assignment, then, as its effect was to prefer creditors, such would be the effect of the assignment, and it must, under section 2115 of the Code, be held to be void. That section provides that "no general assignment of property by an insolvent, in contemplation of insolvency, for the benefit of creditors, shall be valid, unless it be made for the benefit of all his creditors in proportion to the amount of their respective claims." We have, then, the question as to whether the two instruments are to be taken as one transaction, and as constituting the assignment. If they are, it cannot properly be denied that the assignment is void, and that Irwin holds the property in trust for Vezina, and may be charged as garnishee.

A mortgage, or several mortgages, may be taken with an assignment proper, as one transaction, and as constituting the assignment; Van Patten & Marks v. Burr, 52 Iowa 518, 3 N.W. 524; or several mortgages may be taken together as one transaction, and as constituting...