Van Patten v. Burr

• Decision Date: 14 December 1880
• Citation: 55 Iowa 224,7 N.W. 522
• Court: Iowa Supreme Court
• Parties: VAN PATTEN & MARKS v. BURR AND OTHERS.

55 Iowa 224

7 N.W. 522

VAN PATTEN & MARKS

v.BURR AND OTHERS.

Supreme Court of Iowa.

Filed December 14, 1880.

Appeal from Scott circuit court.

The petition, in substance, states that on November 30, 1878, the defendant Joshua Burr, being indebted to the plaintiff in the sum of $1,198.05, and insolvent, executed and delivered in writing a general assignment for the benefit of his creditors, contained in three separate instruments, being a chattel mortgage to John Ruch, a chattel mortgage to Mary R. Burr, and an assignment, subject to these two chattel mortgages, to Charles M. Waterman, for the benefit of all his creditors; that said instruments were drawn up and prepared by the attorney of Joshua Burr, Mary R. Burr, and John Ruch, by the request of defendants Joshua Burr and John Ruch, communicated to said attorney at one and the same time; that the execution of said general assignment was in pursuance of a pre-existing verbal agreement between the defendants, with intent to give a preference in the payment of the claims of John Ruch and Mary Burr over the claims of all other creditors, and that, by reason thereof, said general assignment is void as to the plaintiffs. The petition asks that the said general assignment, including the chattel mortgages above mentioned, may be decreed to be void as against the plaintiffs. A demurrer to this petition was sustained. Upon appeal to this court the ruling of the court below upon the demurrer was reversed. 3 N. W. REP. 524, Iowa, 114. The cause being remanded, the defendants Mary R. Burr and John Ruch filed separate answers, denying the material allegations of the petition. The court adjudged that the chattel mortgage to Mary R. Burr and the assignment to Waterman are void as to the plaintiffs, and that the mortgage to John Ruch is valid and binding as to the plaintiffs, and as to John Ruch the petition was dismissed. The plaintiffs appeal.Stewart & White, for appellants.

Martin, Murphy & Lynch, for appellees.

DAY, J.

1. The two chattel mortgages and the assignment all bear date November 30, 1878. The chattel mortgage to Mary R. Burr is made subject to that to John Ruch, and the assignment is subject to both chattel mortgages. The mortgage to John Ruch was filed for record November 30, 1878, at 2:54 P. M. The mortgage to Mary R. Burr was filed for record November 30, 1878, at 3 o'clock P. M. The assignment to Waterman was filed for record December 2, 1878, at 8:01 o'clock A. M. The...