82 Iowa 277 | Iowa | 1891
From the year 1878 until March, 1888, B. T. Frederick and John M. Gilchrist were associated together as partners under the name oí B. T. Frederick & Co. The firm carried on a foundry and machine shop in Marshalltown. Frederick owned three-fourths of the business, and the property with which it was carried on, and Gilchrist owned the remainder. The title to an undivided three-fourths of the real estate used in the business was vested in Frederick, and the title to the remainder was vested in Gilchrist. On the tenth day of October, 1881, Gilchrist made to plaintiff a mortgage bond for the sum of three thousand dollars, which was signed by Frederick as surety. To secure its payment Gilchrist and wife executed to the plaintiff a mortgage on his share of the partnership property, including his interest in the real estate used by the firm. Of the money procured by means of the bond and mortgage, two thousand dollars were paid to Frederick on account of a debt due him from Gilchrist for the purchase price of his interest in the property used by the firm. On the tenth day of October, 1884, the bond being due and unpaid, Gilchrist and Frederick, for the purpose of extending the loan, made a new bond to the plaintiff, and the old one was surrendered. In March, 1888, Frederick concluded a sale to the defendant, A. E. Shorthill, of all his interest in the property and business of B. T. Frederick & Co., including his title to the real estate used by it. In November, 1888, Gilchrist sold and conveyed to Shorthill his interest in the business of the firm, and in the property used by it. This action is brought to recover the amount due on the second bond, and to foreclose the mortgage given to secure the indebtedness represented by the first bond, and for an attorney’s fee.
The appellant Shorthill claims that, at the time of his purchase from Frederick, Gilchrist had overdrawn his share of the assets of the firm, and was owing on that account more than three thousand dollars; that by virtue of the assignment from Frederick the appellant
I. A commission was issued on the application of the plaintiff to take the deposition of Frederick and his
II. Tke certificate of tke notary wko took tke depositions states tkat tkey were taken before kim, and
III. The property upon wkick tke mortgage of the plaintiff was given is described as follows: “.Tke
The appellants claim that the description, so far as it relates to personal property, is void for uncertainty. We do not think the claim is well founded. A person reading it, and seeking to know what it included, would be apprised in the beginning that the property was in Marshall county, and that it formed a part of the assets of the firm of B. T. Frederick & Co. It is not suggested that there was more than one firm bearing that name in that county. .By making inquiries which the description naturally suggests, he would learn that the firm named was doing business on the real property described in the mortgage, There would be no more difficulty in ascertaining what property the mortgage was designed to include than there would had the place of business of the firm been described. The articles constituting the ££ stock, assets and material” of the firm were not specified, it n true, but we do not think that was necessary. From the description given it was capable of identification. Rhutasel v. Stephens, 68 Iowa, 627; Wells v. Wilcox, 68 Iowa, 708; McGarry v. McDonnell, post, p. 732. The word ££ or,” in the last phrase of the description, was evidently designed to have the force of ££ and,” and may be so read. Eisfeld v. Kenworth, 50 Iowa, 389 ; Dumont v. United States, 98 U. S. 142. The description is sufficient, as between the parties to the instrument, and as to all parties having notice of it.
TV. The property conveyed by Frederick to Short-hill-was described in the instrument of conveyance as
Y. Shorthill denies that the mortgage to plaintiff is of any validity, and denies that he had any knowl
YI. The mortgage was not recorded in the chattel mortgage records. But it is shown that Shorthill knew
VII. The appellants complain of the allowance of an attorney’s fee of seventy-five dollars. The bond and
; VIII. No evidence as to what is a reasonable fee jwas submitted, but none was required. The amount due on the bond was ascertained, and the
IX. The decree directed the foreclosure of the-mortgage as to the personal property owned by the firm
X. We have considered the controlling questions in the case. While our finding as to what passed by the sale from Frederick to Shorthill is not the same as that of the district court, yet in finding that the lien of the plaintiff is paramount to the interest acquired of Short-hill in the mortgaged property we reach the same result.
‘The decree of the district court is aeeirmed.