Wadsworth v. Barlow
| Decision Date | 21 April 1886 |
| Citation | 27 N.W. 775,68 Iowa 599 |
| Parties | WADSWORTH & CO. v. BARLOW ET AL |
| Court | Iowa Supreme Court |
Appeal from Jones Circuit Court.
ACTION in equity, with prayer for a receiver of a stock of goods belonging to the defendant W. A. Barlow, and for the establishment in favor of the plaintiff of the alleged priority of certain liens. M. B. Barlow, wife of W. A Barlow, is made defendant, as claiming to hold a first mortgage upon the property executed to her by her husband. Certain others are made defendants, as claiming to have attachment liens upon the property. There was a decree denying the priority of the mortgage of M. B. Barlow, and in favor of the other lien-holders. The Barlows appeal.
AFFIRMED.
Ezra Keeler & J. W. Jamison, for appellants.
Ellis Murphy & Gould, Remley & Ercanbrack, Sheean & McCarn and Davis & Brooks, for appellees.
The only question presented is as to the priority of the mortgage purporting to be executed by the defendant W. A. Barlow to his wife. The other lien-holders assail this mortgage upon several grounds. It will be sufficient to consider one ground. It is insisted by the appellees that the mortgage was not delivered before their liens accrued, and we have to say that we think their position must be sustained. The mortgage appears to have been duly signed by W. A. Barlow, and sent to the recorder of mortgages of the proper county, and recorded. But there is, we think, no evidence that prior to the accruing of the other parties' liens it came into Mrs. Barlow's hands, or that she approved of its execution. It was executed, and sent for record, and recorded, without her knowledge, and there is some evidence tending to show that at one time, at least, she was not pleased with her husband's act in this respect.
As tending to show delivery before the other liens accrued, Mrs Barlow relies, in part, upon the testimony of the deputy recorder. He testified at one time that he mailed the mortgage to Mrs. Barlow. But he testified afterwards that he merely made a memorandum as indicating that the mortgage was mailed to her; but that he had no personal recollection of mailing it, and that, too, even after looking at the memorandum. He also testified that the memorandum did not purport to show who mailed the mortgage, and that it would be the same, even though the mailing was done by the recorder. The memorandum does not appear to have been offered in evidence, and, in the absence of any personal recollection upon the subject, we have to say that it appears to us that the evidence of mailing wholly fails.
But it is said that before the other liens attached Mrs. Barlow had knowledge of the mortgage, and that, inasmuch as the mortgage was beneficial to her, she will be presumed to have accepted it at the time she acquired knowledge of it. The mortgage was upon a stock of goods held for trade by the mortgagee's husband. It had the effect, as might have...
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