Gear v. Schrei

57 Iowa 666 | Iowa | 1882

Adams, J.

1. voiuxTiVEY COTIveyance: by evidence. I. The evidence shows clearly that at the time of the execution of the deed of the lots hy Widick to Mrs. Schrei, her husband was largely in debt and insolvent: that he owed the debts for which the jndgments in question were rendered; that the trade for the lots was negotiated wholly by him; that Mrs. Schrei had no knowledge that a deed of the lots had been executed to her until long after it was done, and that the consideration received by Widick was the cancellation of certain indebtedness due from him to her husband. Her claim to the lots, if it has any support at all, is to be found in the testimony of her husband which is in these words: “I owed my wife $350, which I used in my business. I turned these lots over to secure her.”

But in our opinion the evidence does not show that he owed his wife anything. The pretended indebtedness arose by reason of the fact that Mrs. Schrei’s father, one Steinmeyer, advanced to her husband $350, of which he was to have the use during Steinmeyer’s life, unless the money was needed by Steinmeyer, and in case it was not needed it should, at Steinmeyer’s death, be regarded as an advancement to Mrs. Schrei. Steinmeyer is still alive. He has not parted with his claim to the money, and Mrs. Schrei has not yet acquired any right therein. The conveyance then does not differ in any essential respect from a voluntary conveyance made by a husband while insolvent to his wife. We think that the court correctly held that the plaintiffs were entitled to subject the lots to the payment of their judgments.

2. chattel mortgage: foreclosure faith. II. The counter-claim is based upon the alleged facts that Adolph Sehrei executed to the plaintiff a chattel mortgage to secure the judgments in question: that the plaintiffs took possession or the mortgaged property, and disposed of the same, and never fully accounted therefor.

There was, at least in form, a foreclosure of the mortgage by a public sale of the mortgaged property to the plaintiff's. Schrei contends that the sale was not valid because the property was sold in bulk, and without being properly shown, and because it was understood between him and the plaintiffs that he was not concluded by the sale.

The arrangement between the parties appears to- have been that the property should be offered in bulk; that the plaintiffs should bid thereon the sum of $200; that if they became the purchasers Schrei should be credited with what the plaintiffs could realize in the disposition of the property. Both parties seem to have acted upon this agreement. Schrei has been credited between three and four hundred dollars.

Considerable evidence was introduced for the purpose of showing that the mortgaged property was worth more than was realized, and that it has not been properly disposed of. It is sufficient to say that upon a separate reading of the evidence we have all reached the conclusion that no want of good faith or diligence on the part of the plaintiffs has been shown.

In our opinion the decree of the Circuit Court is fully sustained and must be.

Affirmed.