Lansley v. Van Alstyne
81 Iowa 476
Iowa
1890
Check Treatment
Given. J.

1. Tkial to the court: find-incidence-appeaX I. Appellant claims the property in controversy under a chattel mortgage executed by J. W. Whetmore, December 19, 1887, to Sam- , ™ . , , , ,. , r uel G. Armstrong to secure a note for three hundred dollars, which note and mortgage were assigned to and are now owned by the plaintiff. Appellees claim the property under a chattel mortgage executed December 5, 1887,to him by Charles Shurtliff to secure a note for one hundred and ten dollars. Appellees’ mortgage is prior in point of date, and was duly filed for record on the sixth day of December, 1887. For some time prior to these transactions, Whetmore was in the wood and coal business, and owned and used the property in controversy, together with other property described in the mortgages, in his business. Appellees contend that, prior to the execution of the mortgage by Shurtliff to him, Shurtliff had purchased the property in question from Whet-more, and was the owner thereof at the time he made said mortgage. Appellant contends that the alleged sale to Shurtliff is void as to subsequent purchasers from Whetmore without notice, because the property remained in the actual possession of Whetmore without any written instrument conveying the same-having been executed, acknowledged and filed for record. He also contends that said sale was made in pursuance of a *478fraudulent combination between Yan Alstyne, Whet-more and Shurtliff to cheat and defraud purchasers, creditors and incumbrancers of Whetmore.

The testimony of Shurtliff that prior to the time he made the mortgaged to appellees he had purchased the property mortgaged from Whetmore, and that he owned it at the time of making the mortgage, is uncontra-dicted. At and after the purchase, Shurtliff continued to use the property in the wood and coal business much as it had heretofore been used. There is a decided conflict in the testimony as to whether the possession was in Whetmore or Shurtliff at the time the mortgage was made to appellees; but the court must have found that the possession was in Shurtliff, — a finding that is not without support in the testimony. Further discussion of the testimony would serve no good pui’pose. It is sufficient to say that we think the finding of the court has such support that we should not disturb it. We think there is an entire absence of testimony to sustain plaintiff ’s claim that the sale was in pursuance of a fraudulent combination. Certainly the trial court must have failed to find such combination, and under the state of the proofs we will not disturb the finding of the court upon that issue.

3. Sams of perty?mortgage: evidenco. II. Plaintiff objected to the introduction of the mortgage to appellees, on the ground that there had keen no change of the possession of the property. There was no error in overrul-|ng this objection. The question as to change of possession was the one being tried, and the mortgage was proper evidence.

3. the same. III. The court sustained appellees’ objection to inquiries put to one Livingston as to whether Whet-more had wanted to sell him some of the property sold to Shurtliff, and whether he had heard of the sale to Shurtliff, and a similar question to one Frame. There was no error in sustaining these objections, as it was immaterial to the issue whether these witnesses had so heard or not.

*479Defendants’ motion to strike certain testimony was sustained. We are unable to determine from tire record to what part of the testimony this motion was addressed, and cannot determine, therefore, whether there was error in sustaining the motion or not.

Our conclusion is that the judgment of the district court should be affirmed.