First Nat. Bank of Davenport v. Bennett

40 Iowa 537 | Iowa | 1875

Cole, J.

It is only necessary to state the ultimate facts as we find them, and our conclusion thereon. In April, 1870, the defendants, C. B. Bennett and A. Colflesh, executed their several negotiable promissory notes to Liveright & Baumer. The plaintiff became owner of said notes by indorsement before maturity, and sent the same for collection to Boring' & Bennett, bankers, at Atlantic. Said bankers, in reliance upon' the promise of the makers to pay the same, negligently failed to protest the notes, and to give notice of non-payment, etc., so as to bind plaintiff’s indorsers, who were good. Plaintiff notified the said Boring & Bennett that they would be looked to for payment. Directly thereafter, and in July, 1870, C. B. Bennett, for the purpose of indemnifying Boring & Bennett against loss by reason of their failure to protest said notes, executed to them a mortgage upon “ a certain two-story frame building with all the appurtenances thereto belonging, situated one door west of the Reynolds’ House, and on the block known as the hotel block in Atlantic, Cass county, Iowa.” At that time C. B. Bennett was the owner of the said building, etc., together with a leasehold interest in the lot for two years or more, still unexpired, and had “ the right to remove his improvements at the end of the lease,” and the refusal of a further lease.

In January, 1871, Boring & Bennett became insolvent, and absconded the State, as did also C. B. Bennett and A. Colflesh. In Flay, 1871, the plaintiff obtained judgment in the Cass District Court against the said C. B. Bennett and A. Colflesh for $430.36, the amount of said notes and interest. October 5, 1872, execution was issued' upon said judgment, and was levied upon the property in controversy, including the leasehold interest in the lot and buildings thereon; and, on the 16th day of November, 1872, the property was sold thereunder to the plaintiff, it being bought in the name of Ira M. Gifford, its president, for $366.67, and was afterwards duly-conveyed.

In January, 1871, C. B. Bennett, for a fraudulent purpose, and without any consideration, conveyed the property to Ettie Hall, who afterwards, and in February, 1872,' voluntarily reconveyed it to C. B. Bennett. On February 15,1872, the said C. B. Bennett conveyed the property to Sarah Bennett, his mother, the conveyance itself stating that it was made “ for and in consideration of love and affection, and one dollar in hand paid.” The evidence on the part of defendants tends to show that the defendant, John Bennett, who is the father of C. B. and the husband of Sarah, did, sometime in 1863 or 1864, advance to C. B. Bennett five hundred dollars, for which he took no note or security, and which has never been repaid; and that said sum may have constituted a part consideration for the conveyance of the property to Sarah Bennett. These -are substantially all the facts of the case.

It will be observed that the plaintiff’s judgment against C. B. Bennett was obtained in May, 1871, and that the conveyance by him to Sarah Bennett was not made till February, 1872. TJnder our statute then in force,. Rev. 1860, Secs; 4105-9, as now, Code Sec. 2882, judgments were liens upon the real estate owned by the defendant in the county where rendered or filed; and, by Rev., Sec. 29, sub-div., 8, and Code, Sec. 45, sub-div., 8, the “ phrase real estate includes lands; .tenements, hereditaments, and all rights thereto and interests therein, equitable as well as legal.” The leasehold interest of O. B. Bennett in the lot whereon the improvements are situated, was such a right to it as brought the same subject to the judgment lien under our statute,, as above shown. This’ has been, in effect, so liéld several times by this court heretofore. See Cook & Sargent v. Dillon et al., 9 Iowa, 407; Pelan v. De Bevard et al., 13 Iowa, 53; Baldwin v. Thompson et al., 15 Iowa, 504. We should have no serious difficulty in reaching the same conclusion upon the theory that the conveyance to Sarah Bennett was voluntary in fact; or that the mortgage .made by C. B. Bennett to Boring & Bennett was still in force and unsatisfied, and-that in equity the plaintiff’s right thereto, by subrogation .or otherwise, would give a right paramount to that of appellant.

. The judgment of the court below is abundantly well sustained, and is.

AFFIRMED.