Warner v. Jameson

• Decision Date: 21 October 1879
• Citation: 2 N.W. 951,52 Iowa 70
• Parties: WARNER v. JAMESON ET AL
• Court: Iowa Supreme Court

2 N.W. 951

52 Iowa 70

WARNER v. JAMESON ET AL

Supreme Court of Iowa, Des Moines

October 21, 1879

Appeal from Hardin Circuit Court.

IT is averred in the petition that on the 28th day of June, 1877 the defendant, Jameson, executed and delivered his written order to the plaintiff for a fire-proof safe, for which said Jameson was to pay $ 192, in four equal installments, in six eight, ten and twelve months, for which sums he gave his four promissory notes; that said order provided that until said notes were paid the title to said safe should not pass, but that the same should remain the property of plaintiff, and in default of payment plaintiff should have the right to take possession, and remove said safe without legal process; that said safe was duly delivered to said Jameson in pursuance of said written order and contract, and that said notes are due and unpaid.

That after making said contract and notes, and after the delivery of said safe to said Jameson, he made an assignment for the benefit of his creditors under the insolvent laws of the State, to the defendant, Bodecker, as assignee, whereupon said assignee took and now has possession of said safe.

"That at and before said assignment was made, said Bodecker had full knowledge and notice of the rights of plaintiff to said safe, and all of the conditions of the aforesaid written order and promissory notes, and it was then and there understood by and between said Jameson and said Bodecker that said Bodecker should take said safe subject to plaintiff's interest and rights under said order and notes; that there is now due and owing to this plaintiff, on said order and notes, the sum of $ 130."

The prayer of the petition is that said safe be taken from the list of assets of said insolvent estate, and that an order be made authorizing and directing the sale thereof, and the proceeds applied to the payment of the amount due the plaintiff.

The defendant, Bodecker, demurred to the petition upon the following grounds:

1st. That said petition shows that plaintiff relies for his title to the safe in question upon the written order thereto attached, which is no notice to the creditors, it never having been recorded.

2d. That the alleged agreement between the assignee and the insolvent is in fraud of the rights of the creditors, and they are not bound by any agreement not within the scope of his duties as assignee.

The demurrer was overruled and judgment was rendered for the plaintiff. The defendant, Bodecker, appeals.

AFFIRMED.

J. H. Scales, for appellant.

S. M. Weaver, for appellee.

OPINION

ROTHROCK, J.

Section 1922 of the Code provides that "no sale, contract, or lease, wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any creditor or purchaser of the vendee or lessee, in actual possession obtained in pursuance thereof, without notice, unless the same be in...