Van Alstine v. Hartnett
| Decision Date | 23 June 1930 |
| Docket Number | 40228 |
| Citation | 231 N.W. 448,210 Iowa 999 |
| Parties | H. S. VAN ALSTINE et al., Appellees, v. GEORGE HARTNETT et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 22, 1930.
Appeal from Humboldt District Court.--JAMES DELAND, Judge.
Action to recover on an alleged lien against the proceeds of certain chattel property which had been sold under foreclosure, said proceeds being in the hands of the First National Bank of Humboldt. From a decree in favor of the plaintiffs, the defendants appeal.--Affirmed in part; reversed in part.
Affirmed in part; reversed in part.
Coyle & Coyle, for appellants.
Lovrien & Lovrien and F. E. Van Alstine, for appellees.
H. S. Van Alstine was the holder of certain notes secured by a real estate mortgage executed by George Hartnett and Mary Hartnett on certain land, and also the holder of chattel mortgages on certain personal property of the Hartnetts'. In October, 1926, he started proceedings, by separate actions, to foreclose both mortgages. A stipulation was made and filed, covering both of these foreclosures, by which the plaintiffs were to have judgment and decree of foreclosure of the real estate mortgage. The chattel mortgages and notes were assigned to Mary Hartnett, without recourse, and the action to foreclose the same was dismissed. It was further stipulated that in the real estate foreclosure the decree should provide for a receiver, to collect the sum of $ 1,500 from the Hartnetts. The Hartnetts agreed to surrender possession of the premises on or before March 1, 1927, and pursuant thereto, the court made an entry, which, after reciting the appearances, entering certain defaults, etc., made numerous findings, among which is the following:
"(7) The receiver shall have a lien against all property kept upon said premises, including all crops, whether exempt from execution or not, and the said lien should be and is superior to the lien, claim, or interest of defendant Mary Hartnett under the chattel mortgages assigned to her."
The entry then proceeds: "Wherefore it is hereby ordered, adjudged, and decreed" (then proceeds to order judgment for the amount due under the notes and real estate mortgage, attorney fees, and sufficient costs, foreclosure of the mortgage, orders special execution, provides for a right of possession, and then proceeds):
"It is further ordered, adjudged, and decreed that one Rex Van Alstine of Gilmore City, Iowa, be and he is hereby appointed receiver to collect the rents, and collect said sum of $ 1,500, as provided in said stipulation."
It is further decreed that:
"The receiver shall apply said rentals, first to the payment of taxes and interest on prior incumbrances, and second, to insurance and upkeep, and third, to pay the balance, if any, to the plaintiff, as consideration for the assignment of the chattel mortgages as herein set forth."
The land was sold under the mortgage foreclosure, and the plaintiffs bid the full amount of the judgment, interest, and costs. Thereupon, defendants moved to discharge the receiver, and, their motion being overruled, they appealed from such ruling to this court; and the opinion will be found in 207 Iowa 236, affirming the ruling of the lower court on the motion to discharge the receiver.
This chattel mortgage and the notes accompanying it were duly transferred to Mary Hartnett, who later transferred the same to Joe Sherlock and C. C. Coyle. The mortgage was foreclosed, the proceeds thereof amounting to $ 1,600, which still remains in the hands of the First National Bank of Humboldt, Iowa, which clerked the sale, said bank also being a party defendant in the present action.
In February, 1927, the petition in equity in the present action was filed, in which it is sought to recover the sum of $ 1,500 due under the stipulation, and to establish a lien against the chattel property, and to impress the fund in the hands of the First National Bank of Humboldt with a trust in favor of the plaintiff, and an order is asked that the First National Bank pay the same to the plaintiff.
In the present proceedings, Sherlock and Coyle intervene, claiming that they are entitled to the funds in the hands of the First National Bank of Humboldt, and asking that they have judgment and decree accordingly. Numerous pleadings were filed in the case, and evidence taken on some of the questions involved. A decree was entered in favor of the plaintiffs, and an order made on the First National Bank to turn the proceeds of said chattel mortgage foreclosure over to Rex Van Alstine, as receiver. The Hartnetts and the receiver appeal.
By adverting to the stipulation and the decree in the former case, it is...
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