Taylor v. Wendling
| Decision Date | 13 June 1885 |
| Citation | 66 Iowa 562,24 N.W. 40 |
| Parties | TAYLOR v. WENDLING AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Winneshiek circuit court.
Action to foreclose a mortgage executed by Wenzel Taylor to his wife, Barbara, and by her assigned to the plaintiff. The defendants were made parties on the ground they had liens on the mortgaged property which were superior to the plaintiff's lien. The circuit court adjudged that the lien of the defendants was superior to the mortgage, and the plaintiff appeals.Willett & Willett, for appellant.
No appearance for appellees.
1. The defendant Wendling, for the purpose of establishing his lien, offered in evidence a certified abstract of the judgment docket of the district court of the county in which the land is situated. To this evidence the plaintiff objected, on the ground that it was “irrelevant, immaterial, and incompetent.” The objection was overruled, and it is renewed in this court. In Moore v. McKinley, 60 Iowa, 367, S. C. 14 N. W. REP, 768, it was held that the judgment docket is secondary evidence. In that case no objection was made to the evidence in the lower court. Nor was there in this case that the evidence was secondary, but that, conceding it to be primary evidence, it was immaterial and incompetent. The evidence is both material and competent, and the objection that it is secondary cannot be urged for the first time in this court.
2. The plaintiff's mortgage is first in point of time, but the defendants pleaded that it was given to hinder, delay, and defraud the creditors of the mortgagor, who, at the time it was given, was insolvent. The mortgagor, being largely indebted, executed, at the solicitation of an attorney, certain mortgages for the purpose of securing certain of his creditors, and then executed the mortgage in question because “he was indebted to his wife for money that she had let him have.” The amount he was so indebted was not stated. His wife was not present at this time, and it is not certain that she had any knowledge of the mortgage until after it was recorded. The mortgage was given to secure a note for $3,000, payable in one year after date, with 10 per cent. interest. The note was executed at the same time the mortgage was. The person who draughted the mortgage testified that the mortgagor, in addition thereto, “selected some $2,000 or $3,000 of notes and accounts, and transferred them to his wife.” Counsel for appellant insist that this evidence should not be credited, but there is nothing in the record which will authorize us to disregard it.
There is no certain and direct evidence that the mortgagor was indebted in any sum whatever to his wife at the time the mortgage was executed, but there is evidence showing that several years prior thereto she had let him have not exceeding $1,250. The mortgagor then being in failing circumstances,...
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