24 Iowa 257 | Iowa | 1868
This cause turns mainly, it not entirely, upon questions of fact. It is not necessary, in truth it is not proper, that we give a detailed statement of the facts and the reasons for our decision, which would cover many pages of the reports and be of no benefit as a precedent to this and the other courts of the State. We will only attempt such a statement of facts, and our conclusions therefrom, that our decision may be intelligible and sufficient to guide the court below in finally settling the rights of the parties.
In February, 1862, E. II. Gibbon & Co. were indebted to Rindskopf, Brothers & Co., $4,086.96; to Ziller & Freidman, $250; to R, W. Booth & Co., $400; to M. E. Reeves & Co., $767.86; to plaintiffs, S. C. Davis & Co., and to ten or twelve other parties (whose names and the amount of their claims it is not necessary to state), — many of whom then had, or afterward received, security, either by mortgage of real estate, or by deposit of notes or book accounts as collaterals. About that time an agent of
March 1, 1862, Gibbon & Co., sold out their stock of goods to Parvin, a nephew of Gibbon, and a young man without weans, or experience in business, for $3,150', receiving in payment eight promissory notes, executed
It cannot be determined from the evidence, whether these notes were given under the arrangement made with his creditors in Cincinnati, or were given in addition to those provided for under that arrangement. Parvin sold the goods in August, to Palmer, who paid therefor $2,150 cash, and, in payment for the balance of the price agreed on for the goods, conveyed to Parvin certain real estate consisting of some lots in'Chariton.
The money received of Palmer, he paid upon his notes held by Sheller. Sheller applied $1,500 of this money, on his claim against Gibbon, and the balance on the claims of the parties for whom he was acting as agent.
Cowls held a judgment against Gibbon, which Avas a lien on his farm. Hopkins, a defendant in this suit, purchased this judgment, and, by an arrangement with Parvin, for whom Gibbon acted as agent, obtained one of the lots which Palmer had conveyed to Parvin, by guarantying and undertaking to pay two of Parvin’s notes of $500 each, held by Sheller as agent for Gibbon’s creditors. This lot was conveyed to Cowls in part payment for the judgment against Gibbon. Subsequently, Hopkins purchased the farm at sheriff’s sale.
April 30, 1862, plaintiffs recovered judgment against the firm of Gibbon & Co. for $1,951.94 with interest, at 10 per centum per annum. By scire facias the individual
Plaintiffs seek, by this proceeding, to subject to their judgment the lots which Parvin received in payment for the goods, and that have not been conveyed by him, as well as all the notes and property'received by Sheller, which have not been converted into money and paid to the creditors of Gibbon, and the amount due from Hopkins on account of his guarantee of Parvin’s notes.
The case was submitted to the District Court in November, 1865, upon an agreement that it should be decided in vacation, and January 15, 1867, a decree was filed.
By this decree Sheller is required to deliver to a receiver “ all property, notes, moneys and credits ” in his hands, and received from Gibbon, or Gibbon & Co., and all notes, accounts and property “ heretofore held by him as collateral security for Rindskopf Bros. & Co., and other creditors of G. W. Gibbon & Co.” Sheller is also ordered to pay to the receiver $1,500, received on Parvin’s notes and applied by him to the payment of his claim against Gibbon. In case payment thereof was not made in thirty days after the rendition of the decree, the order is to have the effect of a judgment for the amount of $1,500 in favor of plaintiffs. Judgment is rendered against Hopkins for $1,270, on account of the notes to Parvin guaranteed by him. The decree also orders the lots owned by Parvin, namely, lots 2, 9, 10, 11, 12 and 13 in outlot 3 in the town of Chariton, to be sold, and the proceeds applied to the payment, pro tcmto, of plaintiffs’ judgment.
We may remark right here that the relief adjudged to plaintiffs, is certainly most ample.
They recover judgments for $2,770 against the two defendants, Hopkins and Sheller, and at the same time are to have the benefit of the proceeds of the lots which,
1. Plaintiffs claim that the chattel mortgages to Rindskopf Brothers & Co., and the surrender of collaterals to Shelter for their benefit and that of the other creditors, were fraudulent, and as to them, were void, because the transactions were in the nature of an assignment, preferring these creditors to the exclusion of plaintiffs and others.
2. That the sale of the stock of goods to Parvin was fraudulent, inasmuch as it was designed to hinder and delay creditors.
3. That the purchase of the farm by Hopkins was made for Gibbon’s benefit, with his money, and Hopkins thereby acquired the property under a secret, trust for Gibbon.
4. That the notes guaranteed by Hopkins, and executed by Parvin in payment for the stock of goods, should be
5. That Gibbon & Co., and Gibbon, owed Sheller nothing, and that therefore the money applied by Sheller, as he claims, in payment of his own debt against Gibbon, was a fraud against plaintiff’s, and that Sheller ought to be held liable to them for the amount thereof.
Without entering into any discussion of the evidence, we simply announce the conclusions at which we arrive upon the above points made by plaintiffs, after a very careful consideration of the evidence.
III. We find no evidence to sustain the allegations of fraud on the part of Hopkins, in the purchase of Gibbon’s farm.
IY. We hold that the notes of Parvin, guaranteed by Hopkins, and the other notes, accounts and property in Sheller’s hands, should be first applied to the payment of the debts of the several creditors of Gibbon & Co., and Gibbon, intended to be secured, viz.: Rindskopf Bros. & Co, Ziller & Freidman, Booth & Co., Reeves & Co., and also the claim of Sheller, in case it be established as herein after directed. We are unable to determine clearly what specific property was intended for the security or payment of the particular claims of each of the above named creditors, neither are we able
The notes, book accounts and other property^)iyai^l^ ferred to Sheller by Gibbon & Co., for securing or the creditors above named, should be applied purpose, each creditor to receive the proceed| specific property intended to be applied to hisVaiUt Any surplus, remaining after the payment of his should be applied to the debt of Davis & Co., plaintiffs.
In case it should be found that the property was transferred to Sheller to pay all of the claims generally, then only the surplus to be paid to plaintiffs, after all the other debts are paid. These facts, as well as the amount of the indebtedness, if any, from Gibbon & Go. to Sheller, must be determined upon a new trial. In case no indebtedness is found to Sheller, of course he will be allowed no part of the proceeds of said property.
The lots in the town of Chariton attached in this proceeding, the title of which is in Parvin, should be subject to the debt of Gibbon & Go. to plaintiffs.
The cause is reversed and remanded, with directions that a new trial be had upon the question of Gibbon or Gibbon & Go’s indebtedness to Sheller, and the further question as to the application of specific property upon the respective claims of the different creditors. The other questions in the case, being determined by this decree, will not be retried.
The court will provide for the appointment of a
Reversed.
A petition for rehearing being filed, and considered per curiam, the opinion in this case is modified to this extent: “ The lots in the town of Chariton, attached in this proceeding, the title to which is in Parvin, should be subject to the debt of Gibbon & Co. to plaintiffs,” subject, however, to any right or equity which the holders of the notes of Parvin may have, to subject the same to the payment of said notes by virtue of a vendor’s lien, or other equity pertaining thereto, and in no event shall Parvin be liable for the payment of his notes, except for such (if any) balance remaining due thereon, over and above the amount realized upon the sale of said lots under the vendor’s lien or otherwise. The petition for a rehearing is overruled.