Wood v. Scott

• Decision Date: 10 December 1880
• Citation: 55 Iowa 114,7 N.W. 465
• Parties: WOOD v. SCOTT.
• Court: Iowa Supreme Court

55 Iowa 114

7 N.W. 465

WOOD

v.SCOTT.

Supreme Court of Iowa.

Filed December 10, 1880.

Appeal from Taylor district court.

Action to replevy a stock of goods alleged to be worth $381.54. The plaintiff claims the right of possession by virtue of two chattel mortgages executed by one Lovett, the owner of the goods. The defendant is the sheriff of Taylor county, and claims the right of possession by virtue of the seizure of the goods upon a writ of attachment against Lovett and in favor of J. H. Merrill & Co. One of the mortgages held by plaintiff was executed by one Ashur, and by Ashur assigned to the plaintiff. No question is raised in regard to the validity of this mortgage, and the attachment being subsequent to the execution of the mortgage the attaching creditors tendered to plaintiff the amount of the mortgage debt, to-wit, $120, which the plaintiff refused to receive. The other mortgage, which was also executed prior to the attachment, the defendant claims is invalid, the invalidity being alleged to consist in the fact that the mortgage was executed to defraud the creditors of Lovett. There was a trial by jury, and finding that the plaintiff was entitled to possession only upon the Ashur mortgage, and judgment was rendered accordingly. The plaintiff appeals.L. F. McCoun and Whiffin & Brown, for appellant.

Crum & Flick, for appellee.

ADAMS, C. J.

The mortgage alleged to be invalid, by reason of fraud, recited a consideration of $500, and purported to be given to secure a promissory note of $500. The real amount due upon the note at the time it was given was only $225. Lovett, at the time of the execution of the note and mortgage, was in failing circumstances, and the evidence tendered to show that the plaintiff had knowledge of that fact. The court gave an instruction in these words: “Should you find the facts to be that there was only due and owing the plaintiff the sum of $225, and that the consideration named in the mortgage was $500, then, if you further find that the plaintiff knew that Lovett was pressed for his debt, and was in a bad condition financially, you are instructed that fraud is conclusively, shown so far as the mortgage made by Lovett to Wood is concerned.” The giving of this instruction is assigned as error.

The question presented is as to whether, where a mortgage is given by an insolvent person for more than is due, and the fact of insolvency is known to the mortgagee, such mortgage is to be deemed conclusively...