164 Iowa 20 | Iowa | 1914
Lead Opinion
On the 27th day of October, 1909, A. B. Thompson purchased a stock of goods from the Belmond Savings Bank. At the time he purchased it, the stock invoiced at $3,900. At the same time, Thompson executed a mortgage to the Belmond Savings Bank, upon the stock of goods so purchased, to secure the payment of sixty-eight promissory
All my entire stock of grocery goods, consisting of glass and crockeiy, woodenware, confectionery in glass and boxes, including both glass and jars, trays and boxes; also all canned goods, cigars, smoking tobacco and tobacco of every kind; also all nuts and fruits, and all other things not enumerated, and such as are usually kept in a grocery store; all showcases, including candy and cigar cases; also all other fixtures and furniture as connected therewith; also gasoline lighting plant, scales, safe, short account system, refrigerator and oil tanks, delivery team, harness and wagon; all located on the E. 1/3 of lot 1, block 25, Belmond, Iowa. (There was further provision in the mortgage as follows.-) All increase from said stock of whatever kind or nature.
After the purchase of said stock and the execution of the mortgage, Thompson commenced to do a retail business in the same building in which the stock was located, and continued to do business in the same store until the 31st day of October, 1911, at which time he made a general assignment of all his property, including the stock and property mortgaged as aforesaid, for the benefit of his creditors.
It appears that, at the time of the making of the deed of assignment, the property in the store building hereinbefore described, including 'the property in existence at the time the mortgage was executed, invoiced at $2,900. The assignee of Thompson, under order of the court, sold all the property in controversy here; and at the February term, 1912, filed his report, in which he sets out the entire indebtedness of the estate and the assets in his hands, and asks that he be authorized and directed to pay to the Belmond Savings Bank the amount realized from the sale of the chattels claimed to be covered by the mortgage, and that said mortgage debt be first paid out of the proceeds of the sale of the stock claimed to be covered by
In the deed of assignment made by Thompson, he described the property deeded as follows: “The entire stock of groceries consisting of groceries, canned and in glass, teas, coffees, spices, sugars, cereals, soaps, candies, and everything else connected with and pertaining thereto, as now kept and contained in the two-story building situated upon the east one-third of lot 1 in block 25 in the original town of Belmond; all showcases, fixtures and furniture contained in said building, above described, on the first floor thereof, together with one National Cash Register, one team of horses, delivery wagon, together with wagon and harness.” There is no question made.in this record as to the right of the bank to take precedence over general creditors of the assignor as to all property actually covered by the mortgage at the time of the assignment.
The contention is, on the part of the Ft. Dodge Grocery Company, that there was no provision in the mortgage covering after-acquired- property or that created any lien in favor of the mortgagee upon any property in the stock which was placed there by the mortgagor after the execution of the mortgage; that the word “increase” does not cover after-acquired property, though the same was in faet acquired from the proceeds of the sale of the mortgaged property. This contention of the objector, the grocery company, must be sustained for the reason that at common law nothing could be mortgaged that was not in existence at the time of the mortgage and did not, at the time of the mortgage, belong to the mortgagor. This was founded on the rule that what a man has not got he cannot give; but this rule was somewhat modified so as to cover property in which the mortgagor had a potential interest or ownership at the time of the execution of the mortgage. Thus it has been held that the increase of stock mortgaged may be covered by the mortgage, though not in being at the time of the execution of the mort
In Jones on Chattel Mortgages (4th Ed.) section 154, it is said: ‘ ‘ The fact that new goods were acquired by way of renewal of old goods on hand, or in substitution for them, or were paid for out of the proceeds of the old, has seemed, in a few cases, to be the ground upon which the mortgage has been sustained as a lien upon the new goods; yet this ground has been so often declared ineffectual to give the mortgage any validity as to goods subsequently acquired, that no exception to the general rule prevailing at law,’ requiring such mortgages, can be sustained. The courts have gone so far as to hold that a mortgage covering renewals and substitutions for the goods in stock covered by the mortgage would not, in law, give the mortgagee a right of action against the creditors, or subsequent mortgagee seizing them.”
In this state, the doctrine has been adopted that, in cases
In Phillips & Son v. Both, 58 Iowa, 499, the chattel mortgage on a stock of goods contains this clause: “The said grantor to have the privilege of retailing said stock, but to keep up said stock as fully as it now is as nearly as possible. ’ ’ The court said: “Did the mortgage cover goods afterwards purchased and added to the stock on hand at the date of the mortgage? We think it did not. The rule in this state is that the chattel mortgage may be made to cover future acquisitions of property” — citing Scharfenburg v. Bishop, 35 Iowa, 60; Fejavary v. Broesch, 52 Iowa, 88; Stephens v. Pence, 56 Iowa, 257. The court further says:
An examination of these cases will show, however, that,
The only evidence in the record is that given by the mortgagor, Thompson, and it is to this effect, that the stock, when purchased from the bank, was an old stock. “After I purchased the stock, I commenced to do business where the stock was located. I did a general retail business, and added to the stock by purchases. I cannot tell how much my purchases amounted to, but were pretty large. It would run to about $1,000 a month. Was in business three years. At the
It appears that the mortgagor purchased this stock from the mortgagee. It appears that the mortgagee and mortgagor resided in the same town; that the mortgagor had been openly and publicly selling goods from this stock, and, we must presume, with the knowledge of the mortgagor. The mortgagee, in its mortgage, had retained no lien upon afterwards acquired or substituted goods. The mingling was evidently with the consent of the mortgagee. Can it claim goods not covered by the mortgage, on the theory that the goods mortgaged to it were wrongfully commingled with the goods upon which he had no lien, and which, but for his claim, would have passed, under the deed of assignment, to the assignee for the use and benefit of all the creditors?
In Jones on Chattel Mortgages, section 483, it is said: “Where the confusion of the goods has taken place by the permissive act of the mortgagee, he is not allowed to defeat the rights of the judgment creditor by claiming the goods under his mortgage. If, under such a mortgage, the mortgagee has permitted sale to be made by the mortgagor, and the latter afterwards makes an assignment for the benefit of creditors, and the assignee sells the goods, the mortgagee is entitled to only such part of the proceeds as come from
It is said that four cases may arise in which there may be a confusion of rights involved in the confusion of goods: (1) Where the mixture is made by consent of parties. (2) Where it arises from the willful or tortious conduct of one of the parties. (3) Where it is made by unintentional mistake. (4) Where it is the result of inevitable accident.
Where the mixture is by consent of the parties, the relationship. to the goods, after confusion, would rest upon the contract between the parties involved in the consent, and the presumption would be that they were tenants in common.
Where the confusion is tortious, the party whose wrongful conduct created the confusion must lose, but this rule has been modified in cases where the property is all parts of equal value, and the value of each part is ascertainable, with relationship to the value of the whole thing as produced by the confusion, and parties will be tenants in common," and each will be entitled to his own proportion, but every presumption and intendment is against the wrongdoer, against the party whose wrongful act produced the confusion, and the burden would rest upon him to distinguish his property, if possible, from that with which it has been intermingled.
But where the equities of the parties are equal, and the confusion is the result of inevitable accident, the parties would have an interest in the whole mass .to the extent of the contribution thereto of his property, or they would be tenants in common in proportion to the amount of property contributed to the confused mass.
Dissenting Opinion
(dissenting). — In my judgment there is no fair room to doubt that the parties to the mortgage intended and understood that the lien thereof would attach to- any and all additions thereafter made to the stock of goods. The word “increase,” though perhaps not one most ordinarily employed to express that idea, may yet be used for that purpose without notating any of the usages of our language'. Among the definitions of “increase” given by the Century Dictionary in an “amount or number added to the original stock or by which the original stock is augmented; augmentation.” Webster defines the verb “to increase” as ‘ ‘ to make greater in bulk, quantity, or number; to add to. ” It will thus be seen that the language of the mortgage aptly expresses the idea of additions made to the mortgaged property.
In my judgment, the decree below should be Affirmed.