179 Iowa 993 | Iowa | 1917
It appears that plaintiff is a banking institution, located for years at Norway, in Benton County, Iowa; the defendant bank and its cashier, Kirby, are located in Esther-ville, Emmet County; the defendants Bergesons formerly lived in Benton County, and were patrons of the plaintiff bank and on intimaté terms with its officers, who loaned the sons money before and after their removal to Emmet County. These loans originated about 12 years before these actions were brought; they were not paid, but renewed from year to year and the interest paid, the mother signing with
It is claimed by appellee that this order was accepted by defendant bank and the money placed to the credit of E. 0. Bergeson, who used the money in paying on his mother’s obligations to the bank, and that the matter of his giving credit to his mother on her notes to him, being a personal matter, is unknown to the defendant bank and its cashier.
We should say here that the conveyance of the land by E. 0. Bergeson of about 800 acres was made prior to the conveyance by his mother. The first conveyance is the one, as we understand the record, that defendants claim was all settled before the defendant bank and Kirby had any knowledge of plaintiff’s claims against the Bergesons. The mother’s land consisted of 319 acres, which was sold at $70 an acre, or a total of $22,330, and her personal property conveyed was $2,000, a total of $24,330;-and the conveyance of the land was subject to the first and second mortgages above referred to, amounting to $14,500, and interest. Out of the balance, interest, other notes, judgments, taxes, etc., were paid, which defendants claim took up all the balance, and that the account was balanced, while plaintiff claims that four items so paid were credited wrongfully, and that these four items, amounting to $5,172.10, should be accounted for. While appellant argues other questions as to the validity of the chattel mortgage, and as to whether it had been paid or settled in the first land deal or by deposits in defendant bank by some of the parties and by notes and renewals thereof, also the question as to whether the first conveyance was valid, we apprehend that their real claim is that what they most rely upon is that
Continuing appellee’s statement as to the facts, it is stated that, in the spring of 1912, E. 0. Bergeson removed to Canada, the fact of his intended removal being- known to plaintiff in June, 1911; that E. 0. Bergeson was his mother’s adviser and manager, and that this was known to the plaintiff. Kirby testified that the price at which the Mrs. Bergeson land was taken over, $70 per acre, was a fair price; E. 0. Bergeson, plaintiff’s witness, testified that the fair price was $75 to $80 an acre; and no other testimony was taken, except that of Mr. Pickart, who testified that his knowledge of values was only from general inquiry. Appellee says that plaintiff, as he understands it, concedes that the attachment on chattels and garnishment should fail, but contends that the money received from Anna S. Bergeson’s lands, after paving her debts, should be applied on plaintiff’s judgment, and that therein lies the present dispute.
Counsel for appellant challenge the appellee’s foregoing statements as to the facts, in the following particulars: They deny that the transaction between. defendant bank, Kirby and the Bergesons, was fully settled before defendants had knowledge of the plaintiff’s claim; and the second is substantially the same: they deny that defendants had no knowledge of the plaintiff’s claim before they took over the Bergeson property or made payment in settlement therefor; they deny that defendants Anna S. Bergeson and E. O. Bergeson are still indebted to the defendant bank as claimed; they deny that Mrs. Bergeson’s order was accepted by the defendant bank and the proceeds of her property disposed of as defendants state; and, last, that the plain
1. We shall spend but little time in reviewing the evidence as to appellant’s claim that the $10,000 chattel mortgage given by E. O. Bergeson to the defendant bank, or to Kirby, its cashier, for the bank, is a sham. Appellant contends that the chattel mortgage debt was paid in the first land transaction between E. O. Bergeson and the bank, or Kirby, in the sale of S00 acres of land, or paid by some of the numerous notes and renewals thereof, given by E. O. Bergeson to the defendant bank, or by other transactions between the parties. But it is testified that the 800 acres of land was figured at $62.50 per acre, or $50,000, and the sale was subject to encumbrances thereon of $26,500; and the testimony for defendants is that, before that conveyance, the amount of claims held by Kirby or the bank against E. O. Bergeson was about $30,000, evidenced by promissory notes of E. O. Bergeson. The books of defendant bank, or an agreed copy, were introduced in evidence, showing the state of the account for several years between the bank and E. O. Bergeson, and a list of a number of notes and renewals, showing also the deposits and overdrafts of E. O. Bergeson in the bank. There was a large number of such transactions, and there were deeds on lands, which were in fact mortgages, given, as defendant bank claims, as security for claims or notes other than the $10,000 mortgage. The inference plaintiff seeks to draw from these numerous transactions is that the mortgage was paid and satisfied, and that it was still held as a pretended claim against Bergeson. Another circumstance relied upon by appellant in this connection is that, in the spring of 1912, E. O. Bergeson had invested about $1,400 in Canada land, and that defendant bank, or Kirby, permitted him to take 8 horses and some machinery to Canada which was covered by the mortgage in question. There are some other circum
2. Taking up now the question as to the conveyance of the lands, perhaps it would be wrell to note the evidence briefly upon the fewT points wherein plaintiff challenges 1 1he appellee’s statement, before set out. Mr. Kirby testified that, in carrying out these transactions with the Bergesons and taking the transfers and the conveyances and applying the funds in the manner showm, he knew' nothing about the indebtedness of the Bergesons, or any of them, to the plaintiff before he bought the land, and that, in 1he transfers and conveyances, and in applying the funds and proceeds in the manner he did, there Avas no intent or purpose on his part to hinder or delay creditors of the Bergesons; that his intent was to get out, and he did not know of the other existing debts. Plaintiffs cashier, Pickart, who was, at about the time of the commencement of these suits, or before, looking after plaintiff’s claims against the Bergesons, and Avho visited the Bergesons in Emmet County in the attempt to collect or secure plaintiff’s claims, testi
As to the claim of defendant bank that there is still an indebtedness of $8,300 due, Mr. Kirby testified that E. 0. Bergeson is still indebted to the bank in the sum of $8,300, except that there should be a credit of $103, and produced the notes and a chattel mortgage securing them on a part of the property that was attached. As we understand it, this was after the conveyance of the Anna S. Bergeson land. The testimony shows that defendant bank, by its acts, accepted the order given by Mrs. Bergeson, directed to Kirby, and that the money was paid out; so that, notwithstanding plaintiff’s challenge to the statements before referred to, we think the evidence sustains appellee’s claim as to this. In this connection, there is still another matter we shall refer to at this point, in' regard to the testimony of Mr. Piclcart, plaintiff's cashier. He testified that E. O. Bergeson told him, in June, 1911, that he, E. O., expected to go to Canada later. This was after the conveyance of the E. O. Bergeson land to Kirby in 1910. It also appears from the record that, prior to the conveyance of Mrs: Bergeson's land to Kirby, the plaintiff bank, or its cashier, had an opportunity to take the land at a price which appellant admits was a fair price, and to deduct all plaintiff's claims against the Bergesons, but plaintiff refused to have anything to do with it, the cashier says, because he had no authority to do so. But at that time, or about that time, he was seeking to enforce the payment of plaintiff’s claims against them.
3. We are satisfied from the record that, as to the first land deal, — the sale by E. O. Bergeson to Kirby of the S00 acres about December, 1910, — defendant fully paid and
4. The contention of appellant in regard to the Anna S. Bergeson land is that the situation presents the case of a purchaser of the property of an insolvent, and that the sale was partly voluntary, and that the purchaser should account to it; while it is appellee’s contention that it is a case of a creditor seeking to protect his own interests, under which a different rule prevails, as stated in Wescott v. City of Sioux City, 141 Iowa 453, one of the cases cited by appellant. Appellant urges that Kirby was not a creditor of Mrs. Bergeson’s, either individually or in his capacity as bank cashier, and that, at least as to the amount of the alleged unauthorized payments before referred to, Kirby was a purchaser, and to that extent should account to plaintiff. While it is true that the deed was taken in Kirby’s name, as were other notes, mortgages, and perhaps deeds given as security, still he was cashier for the defendant bank during all this time, and, under the record, was acting for the bank. If there were any dispute between Kirby and the bank, he might be required to account to the bank, because he could not use his position in the bank for his own profit and to the prejudice of the bank.
; The conveyance by Mrs. Anna S. Bergeson of her land and personal property to Kirby was in the latter part of the year 1911. She had no property left thereafter. As said, there were 319 acres, at $70, amounting to $22,330, and the personal property, $2,000, subject to mortgages, interest and other claims. The purchase price is all consumed or paid by defendant bank, or' Kirby. But, as stated, appellant contends that there are four items, amounting to $5,172.10, so paid, which were improperly paid and wrongful credits therefor taken. All these payments were made by Kirby or the bank under the written order before set out given by Mrs. Bergeson to Kirby, directing him to pay
The matter of E. O. Bergeson’s giving credit to his mother on her notes to him would be a personal matter, and appellee contends that, as to this, the facts were unknown to the defendant bank and its cashier. There seems to be but little dispute between counsel as to the law, each side citing cases applicable to the 'state of facts as they claim them to be, one side claiming, as stated, that Kirby was a purchaser of an insolvent and that the sale was partly
The case being so much one of fact, we deem it unnecessary to cite and review the many cases cited by both sides, except to say that plaintiff seems to rely, to a considerable extent upon the case of Long v. Garey Investment Co. 135 Iowa 398, 403, and like cases. But in that case, the then owner of title to the property failed to offer evidence of the amount paid or the bona fieles of the transaction, which is not the case here. Appellees claim that the instant case is in line with Atkinson v. McNider, 130 Iowa 281, 285.
The opinion is already too long, and we would not feel justified in pursuing the subject further. It is our conclusion, after an examination of the long record presented, that the judgment of the trial court was right, and it is, therefore, — Affirmed.