Van Patten v. Burr

• Decision Date: 08 December 1879
• Court: Iowa Supreme Court
• Parties: VAN PATTEN & MARKS, APPELLANTS, v. JOSHUA BURR AND OTHERS, APPELLEES.

52 Iowa 518

3 N.W. 524

VAN PATTEN & MARKS, APPELLANTS,

v.JOSHUA BURR AND OTHERS, APPELLEES.

Supreme Court of Iowa.

Filed December 8, 1879.

Appeal from Scott circuit court.

Action in chancery to set aside a general assignment for the benefit of creditors, and certain chattel mortgages executed by defendant Joshua Burr, to the end that the property covered thereby may be made subject to a claim held by plaintiffs against Burr, upon which an action by attachment has been commenced. A demurrer to plaintiffs petition was sustained. Plaintiffs appeal.Stewart & White, for appellants.

George E. Hubbell, for appellees.

BECK, C. J.

1. The petition alleges that the defendant Joshua Burr is indebted to plaintiff in the sum of $1,198, and to recover this sum an action by attachment has been commenced; that while so indebted to plaintiff the defendant, quoting the language of the petition, “in contemplation of insolvency, and being then insolvent, made, executed and delivered in writing a general assignment of his property for the benefit of his creditors, contained in three instruments executed by him;” that the first of these instruments, referred to in the petition as exhibit “A,” is a chattel mortgage upon all personal property owned by defendant in a building occupied by him, except such as is exempt by law from execution, and upon all books and promissory notes held by him to secure the mortgage, on account of the indebtedness of the mortgagor, or liability as his surety. The instrument authorizesRuch to take immediate possession of the property conveyed and makes provision for the sale thereof.

The second instrument--exhibit “B”--is of like effect, and covers the same property, and is intended to secure Mary R. Burr, alleged to be the wife of the mortgagor, on account of his indebtedness to her. This instrument expressly provides that it shall be subject and inferior to the mortgage to Ruch. The third instrument--exhibit “C”--is a general assignment of all the estate, both real and personal, of the assignor, Burr, to Charles H. Waterman, for the benefit of his creditors. Property exempt from execution is expressly excepted, and the instrument provides that it is subject and inferior to the chattel mortgages above mentioned. The petition proceeds to aver in language which we quote:

“That said instruments were intended and do constitute as a whole a general assignment of his property for the benefit of creditors; that said instruments were drawn up and prepared by the attorney of Joshua Burr, Mary R. Burr and John Ruch, at and by the request of defendants Joshua Burr and John Ruch, as plaintiffs are informed and believe, and which request was communicated to said attorney at one and the same time; that each of said instruments was, on said thirtieth day of November, 1878, acknowledged by defendant Joshua Burr at one and the same time, and before the same notary public; that thereafter, upon the same day, and in pursuance of a verbal understanding had at and before the execution of said instruments between said defendants Joshua Burr and John Ruch, therefor, said attorney, still continuing to act for all of said defendants, caused the said instrument referred to as exhibit ‘A’ to be filed for record in the office of the recorder of Scott county, at 2:54 o'clock P. M. of said day, and the said instrument referred to as exhibit ‘B’ to be filed for record in the office of said recorder at 3 o'clock P. M. of said day, and the said instrument referred to as exhibit ‘C’ to be filed in the office of the clerk of this court, at about 5:30 o'clock P. M. of said day.

That in said understanding as aforesaid defendant Joshua Burr acted for himself, and also professed to act for and in behalf of defendant Mary R. Burr, his wife, but, as plaintiffs are informed and believe, without any previous consultation in relation thereto between himself and his said wife; that it was also agreed, verbally, at and before the execution of said instruments, between said defendants, Joshua Burr and John Ruch, that prior to the time of filing said instrument referred to as exhibit “C,” the said defendant John Ruch should demand possession of the property enumerated in exhibit “A,” and defendant Joshua Burr should thereupon surrender the same to him, and that a similar surrender of possession of said property should immediately thereafter be made to defendant Mary R. Burr; that the said several understandings and agreements were so made, with the intent to give a preference to said defendants, John Ruch and Mary R. Burr, in the collection and payment of the respective debts alleged to be due them over the collection and payment of the indebtedness due to plaintiffs and other creditors of said defendant Joshua Burr.

That, as plaintiffs are informed and believe, the said instruments referred to as exhibits ‘A’ and ‘B’ were not in fact, at the date of their execution, to-wit, November 30, 1878, delivered by said defendant Joshua Burr to said defendants John Ruch and Mary R. Burr, but were taken possession of by said attorney, who was then and there acting as attorney for each of said defendants, Joshua Burr and John Ruch, and also acting as attorney for defendant Mary R. Burr, at and by the request of defendant Joshua Burr, to the office of said recorder as aforesaid, and said instruments did not come into the possession of said defendants John Ruch and Mary R. Burr until after the filing of said instrument referred to as exhibit ‘C’ in the office of the clerk of this court.

Plaintiffs further state, upon information and belief, that immediately after the filing of said instrument referred to as exhibit ‘C,’ the said defendant Joshua Burr voluntarily delivered to defendants John Ruch and Mary R. Burr the property...