186 Iowa 958 | Iowa | 1919
On September 8, 1915, M. S. Burgitt and W. D. Thomas entered into a contract in writing with the defendant Chauvet, by the terms of which, for a consideration of $2,300, they sold and conveyed the property in controversy, consisting of horses, wagons, harness, and tile racks, to the latter. Chauvet agreed therein to haul tile and All all tiled ditches in Drainage Districts Nos. 3 and 40 in Hancock and Kossuth Counties, which were being constructed by Burgitt and Thomas, 40 per cent of the total amount' earned monthly to be paid on the purchase price, the balance, of 60 per cent, in cash.-
On December 1, 1915, the parties made a settlement, and $900, which was 40 per cent of the amount earned to
It is contended by appellant: (a) That the description in the contract is too vague and indefinite to impart constructive notice, and that, at the time the mortgage was executed to plaintiff, he was without notice of defendant’s contract; (b) that the instrument was recorded in the wrong county; (c) that same was improperly indexed by the county recorder, as it is, in fact, a chattel mortgage, and not a conditional contract of sale; (d) that the provision of the contract requiring the payment of 40 pqr cent of the-total amount earned monthly operated automatically to reduce the indebtedness monthly to that amount.
IV. But it is contended that the recorder failed to properly index the recording of said instrument, and that, therefore, the same did not impart constructive notice. This contention is based upon the thought that Chauvet’s name should have appeared in the index as mortgagor, and those of Thomas and Burgitt as mortgagees; but, as the contract was a conditional sale contract, this contention is without merit. Sections 2906, 2907 of the Code; National Cash Reg. Co. v. Schwab, supra; Zacharia v. Cohen Co., 140 Iowa 682.
Chauvet made no statement to Burgitt of the amount earned under the contract, and no settlement was had between them. The total amount earned, however, was paid to Chauvet, or to his creditors upon orders signed by him. It is stipulated that neither Thomas nor Chauvet had actual knowledge of plaintiff’s mortgage. No contention is made herein by Chauvet, the debtor. It is apparent, from what has been said, that Burgitt has not been paid for the property, and that, under the terms, of the conditional sale, title did not pass to Chauvet on that account, and therefore his claim is senior to the claim of plaintiff.
It follows that the decree of the court below, finding in favor of Burgitt, must be — Affirmed.