65 Iowa 606 | Iowa | 1885
The case was tried to the court without the intervention of a jury. Plaintiffs introduced in evidence the mortgage referred to in the pleadings. They also proved that a portion of the debt secured by it remained unpaid. They also introduced in evidence the pleadings in the attachment suit, together with the writ of attachment and the return of the officer who served the same; also the record of the judgment in the case, and the order of the court for the sale of the attached property. It was also shown that the mortgage was duly recorded at the time of the levy, and that personal notice of the mortgage was given to the attorney of defendants, who was present at the time of the levy, and directed the officer to levy on the property in question. Defendants introduced in evidence the opinion of the circuit court of the United States for the district of Iowa, in the case of Crooks v. Stuart, 2 McCrary, 13. The mortgage under which plaintiffs claim the property contains the following provision: “ Said grantors, or either of them, will have the right to sell said goods at retail, according to the usual custom of merchants.” It was held by the circuit court of the United States, in said case, that a chattel mortgage, in which the mortgagor reserved to himself the right to retain possession of the mortgaged property and dispose of it for his own benefit, was fraudulent and void as against creditors. The district court made the following finding: “ The court finds affirmatively that the mortgage to the plaintiffs from McQuiston et al. was valid and in good faith, and has not been paid.” The judgment, however, was for defendant. It is suggested by counsel for defendants that the court may have reached this conclusion on the ground that the responsibility of defendants for the alleged wrongs was not established by the evidence.
The writ of attachment authorized defendants to seize the property of Yickory and McQuiston, the parties against whom it ran. It gave them no authority whatever to seize plaintiffs’ property, and it can afford them no protection if they did seize property upon it which belonged to them.
Other questions have been argued by counsel. They all relate, however, to the validity of the mortgage, and arc determined by the finding of the court that it was valid. There was no appeal from that finding. Its correctness cannot, therefore, be questioned in this court.
The judgment of the district court will be
Reversed.