221 N.W. 470 | Iowa | 1928
This action is in equity, praying for foreclosure of a chattel mortgage. The conflict of rights is between two mortgagees, under mortgages involving the same property. The case comes to this court on the ruling on the demurrer to the petition. It is obvious, therefore, that the well pleaded facts of the petition must be viewed as admitted and considered as true.
What are the pleaded facts? It is alleged in the petition of plaintiff, to which the demurrer is referable, that, on December 4, 1922, the defendants A.G. and Lenna Viola Hannah, in consideration of a loan of $200, executed and 1. CHATTEL delivered to the plaintiff, in the name of MORTGAGES: Heitzman Land Loan Company, a promissory note priority: bearing 3 1/2 per cent interest per month, unacknow- payable in installments of $
The prayer of plaintiff is to the effect that a decree be entered defining the respective rights of the parties in the personal property involved, and that judgment be entered against the defendant Duncan-Schell Furniture Company for the possession of said property, and that the property, or so much thereof as is necessary, be sold, under foreclosure of plaintiff's mortgage, to satisfy the amount due plaintiff, and that, in the event that the defendant furniture company has disposed of any or all of said property, and is unable to return said property to the plaintiff, *779 judgment be entered in favor of the plaintiff and against the defendant furniture company for the amount due plaintiff, and for general equitable relief.
To this petition the defendant furniture company filed a demurrer, in which it is recited (1) that the facts stated in the petition do not entitle plaintiff to the relief demanded, and (2) that it appears in said petition that plaintiff, O.B. Heitzman, as a notary public, took the acknowledgment to the mortgage made to him, under which he claims, and by reason thereof said alleged mortgage is null and void, and is not entitled to be filed of record, and would not and does not impart notice to said defendant, and in consequence thereof plaintiff is not entitled to the relief asked against the defendant furniture company. The trial court sustained this demurrer.
In passing, it may be observed that the nomenclature of the statute, Section 11130, Code of 1924, was not used by the defendant in its pleading. Under the present 2. PLEADING: statute, every defense in point of law arising equitable upon the face of a statute, every petition in action: equity shall be made by a motion to dismiss. In demurrer in brief, Section 11130 limits defensive matters lieu of of law, as in the instant case, to challenge motion to by a motion to dismiss. We will, however, dismiss. construe the instant demurrer a motion to dismiss, and so limit it.
The petition alleges that the chattel mortgage executed and delivered to the plaintiff by the Hannahs was acknowledged before O.B. Heitzman, a notary public, and that the said Heitzman was the person who transacted the business in 3. ACKNOWLEDG- question with the Hannahs, and who was licensed MENT: in the trade name of Heitzman Land Loan disqualifi- Company. This fact precludes any claim that the cation of recording of said mortgage imparted constructive officer. notice to third parties. Wilson v. Traer Co.,
The point made by appellant is that the appellee furniture company was not entitled to record notice of appellant's mortgage, for the reason that it (furniture company) was the holder *780
of a prior unrecorded mortgage, and was derelict in withholding its prior mortgage from the record. In other words, the appellant loan company was entitled to have notice of the appellee's prior mortgage, but it did not have either actual or constructive notice thereof. See Sheets v. Poff,
In the instant case, the appellant's mortgage was recorded, but the recording was without legal effect to impart constructive notice. The void acknowledgment of the mortgage did not make the position of the mortgagee less than if the mortgage was not recorded at all. The appellant loan company owed no duty to appellee of recording its mortgage, for the reason that the appellee furniture company was not a subsequent purchaser. It was the duty of the furniture company to record its mortgage prior to the creation of rights in the appellant as to the involved property. The loan company may be viewed as a subsequent purchaser, in relation to the appellee furniture company. This discussion is predicated on the theory that the appellee furniture company's mortgage is a valid mortgage, a point which we deem unnecessary to determine on this appeal.
We conclude that the sustaining of the demurrer was error, and the judgment entered is, therefore, — Reversed.
STEVENS, C.J., and ALBERT, MORLING, and WAGNER, JJ., concur.