Wells v. Sabelowitz

• Decision Date: 21 December 1885
• Citation: 26 N.W. 127,68 Iowa 238
• Parties: WELLS AND OTHERS v. SABELOWITZ, DEFENDANT, AND FRANK BROS. AND OTHERS, INTERVENORS. STEIN v. SABELOWITZ, DEFENDANT, AND FRANK BROS. AND OTHERS, INTERVENORS.
• Court: Iowa Supreme Court

68 Iowa 238

26 N.W. 127

WELLS AND OTHERS

v.SABELOWITZ, DEFENDANT, AND FRANK BROS. AND OTHERS, INTERVENORS.

STEIN

v.SABELOWITZ, DEFENDANT, AND FRANK BROS. AND OTHERS, INTERVENORS.

Supreme Court of Iowa.

Filed December 21, 1885.

Appeals from Floyd district court.

These causes involve the same questions, and will be disposed of in one opinion. The controversy is between plaintiffs, who are attaching creditors, and the intervenors, who hold a chattel mortgage on the property which is the subject of the controversy. The material facts are stated in the opinion. Intervenors recovered in the district court. Plaintiffs appeal.P. W. Burr, for appellants.

Gibson & Dawson and C. A. L. Roszell, for appellees.

REED, J.

On the thirtieth day of December, 1884, the defendant, Sabelowitz, executed two chattel mortgages, each of which covered the entire stock of goods and merchandise in the building occupied and used by him as a store. One of said mortgages was executed to Joseph Hershburg, and was given to secure an indebtedness of $850. The other mortgage was given to the First National Bank of Rockford to secure an indebtedness of $400. Said mortgages were duly recorded on the day of their execution, and each contained the provision “that, in case of default made in the payment of the above-mentioned promissory notes, or whenever the mortgagee shall choose so to do, then, and in that case, it shall be lawful for said mortgagee or his assigns, by himself or agent, to take immediate possession of said goods and chattels wherever found, possession of these presents being sufficient therefor, and to sell the same at public auction, or so much thereof as shall be sufficient to pay the amount due thereon.” On the first day of January, 1885, the plaintiffs each instituted an action on a money demand against Sabelowitz, in which writs of attachment were sued out, on which the sheriff, on the second day of January, seized the property covered by said mortgages. At the time of this seizure Sabelowitz was in possession of the property. On the third day of January, Sabelowitz executed to intervenors a chattel mortgage, covering the same stock of goods, to secure an indebtedness of $1,000 to them. On the thirteenth of January, Hershberg and the bank delivered their mortgages to the sheriff, and directed him to foreclose the same by selling a sufficient amount of the mortgaged property to pay their debts and the cost of foreclosure. The sheriff thereupon set apart so much of the stock as he thought would be sufficient for the payment of the indebtedness to the mortgagees, and from which he realized more than enough to pay the debts and the costs of the sale. The subject of the controversy between the parties is the portion of the property which was not disposed of under the mortgage sale, and the money derived from the sale of that portion of the stock which was sold in excess of the mortgage debts and the costs of foreclosure. When intervenors' mortgage was executed the property was in the possession of the sheriff, who was holding it under the levy of the attachments. If a lien was created by the levy of the writs, it is clear that the interest acquired by intervenors by virtue of their mortgage is...