Stickney v. Stickney

• Citation: 42 N.W. 518,77 Iowa 699
• Parties: STICKNEY et al. v. STICKNEY et al
• Decision Date: 27 May 1889
• Court: United States State Supreme Court of Iowa

42 N.W. 518

77 Iowa 699

STICKNEY et al. v. STICKNEY et al

Supreme Court of Iowa, Des Moines

May 27, 1889

Decided May, 1889.

Appeal from Benton District Court.--HON. L. G. KINNE, Judge.

ACTION in chancery to foreclose chattel mortgages. A decree was entered foreclosing the mortgages, and providing for the order of priority thereof. Defendant Lauderbaugh, whose mortgage is held to be last in the order of priority appeals.

AFFIRMED.

Gilchrist & Haines, for appellant.

Nichols & Burnham, for appellees.

OPINION

BECK, J.

I.

The plaintiffs in this action seek to foreclose two chattel mortgages, executed by defendant Walter Stickney, to indemnify plaintiffs against their liability as sureties for him. The mortgages are upon the same property, viz live-stock, grain and hay on certain specified farms in Benton county, owned by the mortgagor. The mortgagor subsequently executed to plaintiffs another chattel mortgage upon the same property, to secure an indebtedness arising for money loaned, the amount being ascertained by an accounting afterwards had. Prior to the execution of these mortgages Snock had brought suit against Walter Stickney, and seized, upon an attachment issued in the case, a part of the live-stock,--thirteen three-year old steers. Judgment in this case was entered after the mortgages above mentioned had been executed. It has been assigned to plaintiffs' mortgagor. The mortgagor being insolvent, plaintiffs took possession of the property under their mortgages, and caused it to be advertised for sale. Defendant Lauderbaugh, in his answer, alleges that the several mortgages of plaintiffs were executed for the purpose of hindering and delaying himself and other creditors of Walter Stickney; that the indebtedness secured by the mortgages has been paid by the proceeds of sales of mortgaged property; that he brought suit on certain promissory notes executed by Walter, and recovered judgment thereon. An attachment was issued in the action after the plaintiffs' mortgages were executed and levied upon the property described in the mortgages, and plaintiffs were at the same time garnished. On the same day, but after the levy of the attachment, Walter executed to the defendant a chattel mortgage upon the property attached. Defendant's answer is made a cross-bill, and he prays for a foreclosure and judgment which shall be prior to the claims of all other parties. It appears from the pleadings that See, a tenant of Walter, claims an interest in the property covered by the mortgages as a part owner. This interest is admitted by plaintiffs, and is denied by defendant Lauderbaugh. Two successive agreements were entered into by all the parties, to the effect that the plaintiffs sell the property and hold the proceeds to be disposed of as the court may direct, the money realized therefor to stand in the place of the property.

II. Defendant Lauderbaugh insists that plaintiffs' mortgages should not be enforced, for the reason that they were given to defraud Walter Stickney's creditors. The evidence clearly shows that the first two were given to secure plaintiffs, who became sureties for Walter for bona-fide debts. The third mortgage was executed for a sum greater than was really due, for the reason that the parties had made no settlement of the particular...