McConnell v. Denham

Oct 10, 1887
Reporters:
,
Before:
Seevers
Seevers, J.

It is stated in tbe petition that the plaintiff‘s recovered a judgment against the defendant Denham, on which an exesution was issued, and levied on certain personal property on which he had executed a mortgage to the defendant Wilcox, and, in substance, it is stated that the mortgage is void as against the creditors of the mortgagor ; that, after the levy upon said property, the defendant Wilcox served *495upon the sheriff a notice that she claimed it under the mortgage, and thereupon the possession of the property was surrendered to Mrs. Wilcox, without prejudice to the plaintiffs’ lien under the levy ; that, while the property was in possession of Mrs. Wilcox, the plaintiff caused her to be garnished ; that the plaintiff has no adequate remedy at law ; and the relief asked is that a receiver be appointed to take charge of the property, and the amount due on the mortgage be ascertained, the mortgage be declared void, the property sold, and the plaintiff recover a judgment against Mrs. Wilcox, and for general relief.- In an amended petition it is stated that Mrs. Wilcox, when she obtained possession of the property, surrendered such possession to the mortgagor, and he has been using and selling the same, and had realized a large sum of money therefrom ; that plaintiff had caused another execution to issue on said judgment, and had caused the property then in the hands of the mortgagor to be again levied upon ; that the sheriff, by the direction of the plaintiff, surrendered the possession obtained to said mortgagee and her agents, Lafferty & Morgan, and the latter placed said property in the hands of the mortgagor; that, while said property was in the hands of Lafferty & Morgan, they were garnished, and they are made defendants. The relief asked was that a receiver be appointed, and, in addition thereto, relief substantially the same as in the original petition was asked, but no judgment or other relief was asked against Lafferty & Morgan. Afterwards another amended petition was filed, making W. P. Hawkins a defendant, and stating that he is in possession, and assumes the right to dispose of said property, and a judgment for $1,000 is asked against him, and that his light to said property be cut off and barred.

The mortgagor, Denham, and the mortgagee, answered the petition, asserted the validity of the mortgage, and that the indebtedness secured thereby was actually cTue and unpaid. They denied all fraud and conspiracy. Hawkins also’ filed *496an answer stating that he purchased and paid for said property in good faith, without notice of any of the matters stated in the petition, or amendments thereto, and that, prior to making the purchase, he had searched the records for liens against said property, but found none in favor of plaintiff against said property ; and he asks that, as to him, the petition be dismissed. Lafferty & Morgan also filed an answer. Such, substantially, are the pleadings.

1. pleading.-asketífais-nussai. I. Counsel for the plaintiff fail to state in their printed argument the precise measure of relief they deem the plaint-entitled to, or against whom a judgment is asked. This we greatly regret. We shall therefore assume that, as no judgment or other specific relief is asked in the pleadings against Lafferty & Morgan, none can or should be granted, and, as to them, the petition must be dismissed. The plaintiff is not entitled to any relief against Hawkins, because he is, as we find, a good faith purchaser without notice. Counsel for the appellants do not, we think, claim otherwise in their argument. The only remaining question is whether the plaintiff is entitled to any relief against Mrs. Wilcox, and this question we proceed to consider.

2. CHATTEL mortgage: mterest oí mortgagor: levy on. *4973. levy: re-leasesUen. *496II. We understand counsel for the appellants to claim — - First, that the mortgage is fraudulent and void as against creditors of the mortgagor, because of the fraudulent acts and conduct of the mortgagor and mortgagee ; but we think counsel do not greatly rely thereon. We therefore content ourselves with saying that in our opinion there is no evidence upon which such charge can be fairly based. Counsel’s second proposition is that plaintiff is entitled x. *• j. to whatever surplus there mav be after the satis- , i J faction of the mortgage, and that there is such _ s o ’ surplus the plaintiff claims has been clearly established by the evidence. It is insisted that the plaintiff obtained a lien upon the property described in the mortgage, under and by virtue of the levy made by the sheriff, and that *497having such lien, a i‘eceiver should be appointed ; and of course the claim must be that there is a right to proceed in equity. But it has been held that a mortgagor of personal property has no such interest therein as can be levied upon and sold. Gordon v. Hardin, 33 Iowa, 550; Vanslyck v. Mills, 34 Id., 375. This being so, no lien on the property can be obtained by such levy. Besides this, the levy was released voluntarily by the plaintiff, who, however, claims that this may be done, and the lien retained, because the plaintiff declared that the lien was not released. But we think that it clearly follows that when the levy is released, the lien obtained by the levy, conceding one was obtained, clearly ceases to exist. This, it seems to us, must be so.

4. GABNISH-mestt : no erty secured. III. Was a lien of the mortgaged property obtained by the garnishment of Mrs. Wilcox ? We think not. There is no statute which so provides, and no authority is r 7 ” cited which so holds. On the contrary, it was pepj jn Mooar v. Walker, 46 Iowa, 164, that no lien on attached property can be so obtained.

o. chattel mortfafee in garnishment: equitable jurisdiction. IT. But we understand counsel t‘o make the broad claim that, when the mortgagee has not taken possession of the mortgaged property, an action in equity may be maintained by a subsequent incumbrancer or creditor, a receiver appointed, and the rights of , T all the parties be adjusted m such action. In support of this proposition, High, Rec-., §§ 420, 682, 686, is cited. Whether this should be the rule under the statutes of this state we have no occasion to determine, for the reason that the petition states that Mrs. Wilcox was in possession, and was garnished at the time she had possession of the mortgaged property. This being so, the rule invoked by counsel has no application, because it never has been applied in a case where the mortgagee was in possession. In such case, there is no necessity to resort to equity. The remedy at law is full and complete, unless, possibly, the mortgagee is insolvent, *498and is squandering the property. The fact that Mrs. Wilcox surrendered the possession of the property to the mortgagor, and that he ‘was disposing of it, and appropriating the proceeds to his own use, is immaterial, for the right of the plaintiff, and liability of Mrs. Wilcox, were fixed by the garnishment. For some unknown, but for a sufficient, reason, it must be assumed, the plaintiff did not pursue the plain and speedy remedy at law which could have been invoked in such case, but saw proper to institute this proceeding, which in our opinion, under well-established rules, cannot be done.

Affirmed.