Van Patten v. Leonard

Decision Date24 March 1881
CourtIowa Supreme Court
PartiesVAN PATTEN & MARKS v. LEONARD, SHERIFF, AND OTHERS.

OPINION TEXT STARTS HERE

Appeal from Scott circuit court.

The plaintiffs bring this action for the possession of six horses, three sets double harness, three delivery wagons, and certain promissory notes, checks, written obligations, and all books of account and accounts therein stated, owing to one Robert W. Pool. The plaintiffs base their claim to said property upon two bills of sale executed by Robert W. Pool. The defendants answered, alleging that they held said property under a chattel mortgage executed by Robert W. Pool to William Pool, and under a landlord's attachment for rent due from Robert W. Pool to Sarah Jane Pool, executrix of William Pool, deceased. The cause was tried to the court. The court found that the plaintiffs are entitled to the possession of all the promissory notes, drafts, due-bills, acceptances, checks, and written obligations, books of account, and accounts therein stated, in controversy. The court further found that the plaintiffs have a qualified title to the horses, harness, and wagons in controversy, subject to a lien for rent in the sum of $551.36. The plaintiffs having obtained possession and disposed of the property, judgment was rendered against them for the sum of $551.36 and one-half of the costs. Both parties appeal. The material facts are stated in the opinion.Stewart & White, for plaintiffs.

Roderick Rose and Martin, Murphy & Lynch, for defendants.

DAY, J.

On the second day of October, 1877, Robert W. Pool purchased of William Pool a retail grocery store, and executed therefor five promissory notes, each for the sum of $780.40, and due, respectively, in one, two, three, four, and five years. To secure these notes, Robert W. Pool executed a chattel mortgage upon property described as follows: “All the goods, wares, merchandise, fixtures, furniture, and appliances used in and about the carrying on of a first-class retail grocery store, that are now in the house known as No. 422 Brady street, Davenport, Iowa, whether in the cellar, on the first floor, on the second floor, or wherever used or had or kept in connection with the business done at No. 422 Brady street, Davenport, Iowa, and on all such like goods, wares, merchandise, fixtures, or furniture that may from time to time be placed in or about said store No. 422 Brady street.” This mortgage was acknowledged and filed for record October 13, 1877.

On the second day of October, 1877, William Pool leased to Robert W. Pool a two-story brick building, known as No. 422 Brady street, Davenport, for four years from October 2, 1877, at the yearly rent of $700, payable in equal monthly payments; the said Robert W. Pool “covenanting that said rents, whether due or to become due, shall be a perpetual lien on any and all goods, wares, merchandise, now in or hereafter to be put in, on, or about said building No. 422 Brady street, Davenport, Iowa, whether the same be exempt from execution or not.”

On the twenty-first day of April, 1879, R. W. Pool, being indebted in a large amount to the plaintiffs, executed and delivered to them a bill of sale, as follows: “Know all men by these presents, that I, Robert W. Pool, party of the first part, in consideration of $1,000 paid by Van Patten & Marks, party of the second part, do hereby sell and convey unto said party all my right, title, and interest in and to the following personal property, viz.: One span of horses, double harness, and spring delivery wagon used in delivering goods in the city of Davenport, Iowa; one span of horses, double harness, and spring delivery wagon used in delivering goods in the city of Rock Island, Illinois; one span of horses, double harness, and spring wagon used in delivering goods in the city of Moline, Illinois, but all housed in the city of Davenport, Iowa; hereby warranting to said second party that I have full right to sell and convey said property, and that there are no claims or liens as against the above-conveyed personal property.” This bill of sale was filed for record May 13, 1879, at 7:25 o'clock P. M.

On the thirteenth day of May, 1879, at about 4 o'clock P. M., Nathaniel Leonard entered the store of Robert W. Pool and seized the contents of the store under the chattel mortgage to William Pool. The safe was open, but Leonard did not look into it. He left one Hall in charge of the store, with instructions not to allow the safe to be shut. The notes and accounts in question were in the safe. The next morning the safe was found locked.

On the same day that Leonard took possession of the store, R. W. Pool executed to the plaintiffs a bill of sale as follows: “For a valuable consideration, the receipt of which is hereby acknowledged and confessed, I do hereby sell, assign, transfer, and set over unto Van Patten & Marks all promissory notes, drafts, due bills, acceptances, checks, and written obligations by me owned and possessed, together with my books of account, and the accounts therein stated and owing or due to me, and which said personal property is now contained in a certain safe now situated in a store lately occupied by me, known as 422 Brady street, in the city of Davenport, Scott county, Iowa, and which safe is owned, or alleged to be owned, by the estate of William Pool, deceased, and said store is now, or is claimed to be, in the possession of the sheriff of Scott county, Iowa, under and by virtue of a certain mortgage executed and delivered by me to Wm. Pool. All of said property above described, and being as accurate a description thereof as I am now able to make, is hereby sold, assigned, transferred, and set over unto said Van Patten & Marks, as collateral security for the indebtedness now due, owing, and to become due from myself to them; the said Van Patten & Marks to collect the same, and after deducting expenses to apply the same upon the indebtedness to them as aforesaid; and the surplus, if any thereafter, to account and pay over to myself, my heirs, executors, administrators, and assigns.” This bill of sale was duly acknowledged and filed for record May 13, 1879, at 8:05 o'clock P. M.

A landlord's writ of attachment issued out of the circuit court in an action of Sarah J. Pool, executrix, against Robert W. Pool, for rent due upon the lease aforesaid, the return of the sheriff upon which writ is as follows: “By virtue of the within attachment, and in pursuance thereof, I have this thirteenth day of May, 1879, at 9:25 P. M. levied upon the following-described personal property, lying and being situated in Scott county, Iowa, to-wit: “The stock of goods, furniture, fixtures, books, accounts, etc., safe, and contents, situated...

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8 cases
  • Smith v. Boyer
    • United States
    • United States State Supreme Court of South Carolina
    • April 28, 1922
    ......264, 20 L. R. A. (N. S.) 167, 126 Am. St. Rep. 184, 14 Ann. Cas. 434; Swift v. Tempelos, 178 N.C. 487, 101 S.E. 8, 7 A. L. R. 1581; Van Patten v. Leonard, 55 Iowa, 520, 8 N.W. 334; Gallus v. Elmer, 193 Mass. 106, 78 N.E. 772, 8 Ann. Cas. 1067;. Independent Co. v. Lawton, 200 Mo.App. 238, ......
  • Smith v. Boyer
    • United States
    • United States State Supreme Court of South Carolina
    • April 28, 1922
    ......A. (N. S.) 167, 126 Am. St. Rep. 184, 14 Ann. Cas. 434; Swift v. Tempelos, 178 N. C. 487, 101 S. E. 8, 7 A. L. R. 1581; Van Patten v. Leonard. 55 Iowa. 520, 8 N. W. 334; Gallus v. Elmer, 193 Mass. 106, 78 N. E. 772, 8 Ann. Cas. 1067; Independent Co. v. Lawton, 200 Mo. App. ......
  • Swift & Co. v. Tempelos
    • United States
    • United States State Supreme Court of North Carolina
    • November 12, 1919
    ...... bought and sold, in the way of merchants, and as the subjects. of commerce and traffic. Van Patten v. Leonard, 55. Iowa, 520, 8 N.W. 334; Burwell's Law Dictionary. The word. came into use as a term descriptive of the goods and wares. exposed to ......
  • Marshon v. Toohey
    • United States
    • Supreme Court of Nevada
    • May 1, 1915
    ...within the meaning of the statute. Everett Produce Co. v. Smith, supra; Albrecht v. Cudihee, 37 Wash. 206, 79 P. 628; Van Patten v. Leonard, 55 Iowa, 520, 8 N.W. 334; Kolander v. Dunn, 95 Minn. 422, 104 N.W. Gallus v. Elmer, 193 Mass. 106, 78 N.E. 772, 8 Ann. Cas. 1067. The order denying th......
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