191 Iowa 842 | Iowa | 1921
“Witnesseth: That the said parties of the first part, for the consideration of eleven thousand five hundred- dollars, the receipt whereof is hereby acknowledged, do by these presents grant, bargain, sell and convey, unto aforesaid, forever, the following described real estate, lying and being situated in the county of Floyd and state of Iowa, together with the rents, income and profits thereof. * * * And if suit is brought to foreclose this mortgage, I hereby authorize the court to appoint a receiver, for the benefit of the mortgagee, of the rents, issues and profits.”
The mortgagor sold and delivered his interest in the oat crop to the Farmers’ Exchange Company, at Budd, Iowa, and later sold his half interest in the corn crop to his uncle, Emery Allen. The aggregate amount of these sales was $909.60, from which the expense of threshing the oats was deducted, and' the balance, of $868.44, was, upon demand of appellant, paid to it by the purchasers.
On June 7, 1916, plaintiff commenced this action against appellant and Wallace C. Allen and wife for the conversion of the crops and proceeds of the sale paid to the bank. No appearance was entered for the Allens.
One of the points urged by counsel for appellant is that the mortgage to appellee upon the crops is void, because of insufficiency of the description. Conceding that the description is somewhat imperfect, appellant can take no advantage thereof,
“The fact that the ‘tenements, hereditaments, and appurtenances, and the rents, issues, and profits,’ were conveyed to the mortgagee must be construed with the defeasance of the instrument ; and, where so construed, the instrument plainly provides that the rents and profits are only pledged in ease possession is taken by the mortgagee. ’ ’
The provisions of appellant’s mortgage are almost identical with the language of the mortgage in the Swan case. We are of the opinion, therefore, that the lien of appellees’ chattel mortgage upon the corn and oats is senior to the lien of the two mortgages of appellant.
“So far as I am concerned, as an officer of the bank, so far as I know, all of the officers of the bank have at all times been ready to turn this money over to the rightful person. ’ ’
The right to the proceeds of the sale, as between the mortgagor and the contesting mortgagees, is a question of priority only. We therefore see no reason why we should not, in disposing of this question, hold that the defendant bank should pay the money to the plaintiff, thereby disposing of the whole controversy in harmony with the actual contention of the parties. The funds in the hands of defendant at the time of the trial were, as stated, for the benefit of the party found to be entitled to receive the same. Giving effect, therefore, to our holding that the lien of plaintiff’s mortgage is prior to the mortgages executed to or purchased by defendant and now held by its assignees, we must hold that plaintiff is the proper party to receive the same. The judgment of the district court is, therefore, — Affirmed.