24 Iowa 351 | Iowa | 1868
Under these mortgages (acting both for himself and as agent of the other mortgagee), the defendant took possession of the goods. It is claimed, by plaintiffs, that the defendant is liable, upon the garnishment process, for any excess of the value of the goods over the amount of the two mortgages, and the court instructed the jury to that effect. It is argued by the defendant, on the other hand, that, inasmuch as he took and held possession of the goods under the mortgages with conditions broken, his title thereto became absolute and complete, and he was in no sense a debtor of Dewey, nor were the goods, or any part thereof, the property of Dewey; and that the instructions of the court, therefore, are erroneous, so far as they announce a different rule of law. No question is made as to the correctness of rendering an unconditional money judgment against defendant, but the only objection to the instructions in this branch of the case, is the one just stated.
The authorities upon the question here raised are not without conflict, and leave it in great doubt, though it
Section 2217 of the Revision, so far as it relates to mortgages of personal property, does not change the common law rule, and it seems that the right of the mortgagor to redeem after conditions broken, is recognized under our law, inasmuch as chapter 146 of the Revision, provides for the foreclosure of such right. It follows, that if the property be sold by the mortgagee, or upon a foreclosure, for more than the amount of the debt, the mortgagor is entitled to the surplus after payment of the debt out of the proceeds. The necessary conclusion is, that the mortgagee’s possession and title, under the mortgage, are not so absolute and complete that he cannot be required, on a garnishment process, to account either for the surplus of the property or its proceeds, after the payment of the mortgage debt, as the property or credits of the mortgagor in his hands. Torbert v. Hayden, 11 Iowa, 444; Alger v. Farley, 19 id. 520.
A copy of this invoice was attached to the plaintiffs’ reply to defendant’s answer. Eor the purpose of establishing the value of the goods; a witness was called, who stated that he was acquaintedwith their value at the time the invoice was made, and that -he had fixed prices to the articles mentioned in the invoice, extended the amounts
The lien of the landlord attaches upon goods kept for sale upon the premises as the rent accrues, and not from the commencement of proceedings to enforce it. Grant v. Whitwell et al., 9 Iowa, 153; Carpenter v. Gillespie, 10 id. 592. Inasmuch as the lien had-actually attached to the goods, and could have been enforced against them in defendant’s hands, he had the right, in fact it was his duty, to discharge it out of the proceeds of the goods. The amount he paid for that purpose should have been deducted from the value of the goods in determining the amount of defendant’s liability. The instructions of the court upon this point are erroneous.
The amount paid by defendant for the rent clearly appears in the record to have been $90;-the plaintiffs offer, in case the ruling of the court below in regard thereto be held erroneous, to remit that amount of the judgment. If this be done the judgment will be affirmed, otherwise it will be reversed and the cause remanded. In either event the costs of this appeal must be paid by appellees; judgment will be accordingly rendered against them therefor.