87 Iowa 542 | Iowa | 1893
— On the eleventh day of February, 1889, E. H. Farnsworth, a merchant engaged in business at Sutherland, executed on his stock of merchandise a chattel mortgage to the plaintiff to secure an indebtedness of one thousand and seventy five dollars. The mortgage was at once sent across the country to the defendant, at his office inPrimghar, to be recorded. It was filed in his office at forty-five minutes after 3 o’clock in the afternoon, but was not indexed until about 8 o’clock the next morning. After the mortgage was filed, but before it was indexed, two actions, aided by attachment, were commenced against Farnsworth, and the writs were levied upon the mortgaged property. The first writ, issued at the suit of Sperry, Watt & Grarver, was levied at 10 o’clock in the evening of February 11, and the other, issued in favor of Rider, Wallace & Co., was levied at thirty minutes after 6 o’clock in the morning of February 12. A judgment was obtained in each suit, and the attached property was exhausted to satisfy them.
The plaintiff claims that it was the duty of the defendant, as recorder, to index the mortgage at the time it was filed, and that, in consequence of his failure to do so, the mortgage lien was lost; that Farns-worth is insolvent; and that, in consequence of the failure of the defendant to perform his duty, the plain
Of the several defenses pleaded by the defendant, but two are involved in this appeal. The first of them is that the mortgage was fraudulent; and the second is that on the day it was filed for record the defendant was required to perform an unusual amount of official work; that he worked faithfully and continuously until after the usual time for stopping work, but was unable to index the mortgage in controversy until the morning of the next day; and that he performed his duty fully. The jury returned answers to several special interrogatories, which, if well founded, show that the mortgage was fraudulent, and that the defendant indexed it as soon as he reasonably could do so. The claim of the plaintiff against Farnsworth, the fact that he is insolvent, and that the plaintiff sustained damages to the amount claimed by reason of the failure of the defendant to index the mortgage before the levy of the second writ, must be regarded for the purposes of this appeal as admitted or established by the evidence.
“Whenever any written instrument of the character above contemplated is filed for record as aforesaid, the recorder shall note thereon the day and hour of filing the same, and forthwith enter in his entry book all the particulars required in the preceding section, except the sixth; and from the time of said entry the sale or mortgage shall be deemed complete, as to third persons, and have the same effect as though it had been accompanied by the actual delivery of the properly sold or mortgaged.”
The duty imposed upon the recorder by this section is of the most important character, and can not be delayed to permit the doing of other work, but must be performed as soon as it can be done with rea
The evidence submitted on the part of the defendant tended to show the following facts: With the assistance of one clerk the defendant was able to do the work of the office during February, 1889. On the
III. It is said, if it be true that the mortgage is fraudulent against creditors of the mortgagor, the defendant can not rely upon that fact as a defense, so long as the mortgagor does not complain. The question thus presented is stated, rather than discussed, by the appellant, and, since it must be determined according to the facts which may be proved on another trial,, will not now be decided.
Other questions discussed, including one based upon the tenth paragraph of the charge, in regard to the burden of proof, are disposed of by what we have said. The judgment of the district court is beveesed.