127 Iowa 278 | Iowa | 1905
Plaintiff’s action is bottomed upon a chattel mortgage, under date of March 22, 1902, executed by J. Gr. Todd and Posa Todd, bis wife, to Cox & Campbell, covering certain printing presses, type, galleys, imposing stones, type cases, etc., and all other printing materials, stock, and tools “ that we now own or may hereafter acquire during die life of the mortgage.” “ Also tbe subscription list and good will of tbe Underwood Union.” This mortgage was recorded March 22, 1902, and thereafter Cox & Campbell assigned the- same, and the notes wbicb it was given to secure, to plaintiff, Nicholson. Prior to that time, and on or about February 3, 1902, Todd alone bad executed a mortgage to Cox & Campbell covering practically tbe same property, to secure tbe same debt, and tbe first mortgage of wbicb we have spoken was taken in order to secure the signature of Todd’s wife thereto. This mortgage provided that it should be “ subject to any rights E. F. Aney may have acquired under a mortgage dated January 4th, 1902, or thereabouts.” The first of these mortgages, in point of time, was recorded February 5,1902. On the 4th day of February, 1902, Todd alone executed to defendant, Aney, a chattel mortgage upon practically the same property covered by the Cox & Camp
Defendant claims, among other things, that his mortgages from Todd are prior and superior to those held by the plaintiff; that his mortgages were given for the purchase price of the property covered thereby; that plaintiff’s mortgage —■ especially the last one in point of time — was by its terms made subject to those, held by him (the defendant) ; and he asked the foreclosure of his mortgages in equity. He also averred that when Todd executed the mortgages to Oox
The testimony shows that in December, 1901, Todd purchased of one Kharas a printing plant, for the purpose of publishing a newspaper at Underwood, Iowa, to be known as the “ Underwood Union.” For the purchase price therer-of, he gave a mortgage on the property to Kharas to secure the 32 notes, aggregating $325. This mortgage was not recorded, and Kharas on January 21, 1902, sold and assigned the same to one Saunders, as heretofore stated. Todd was unable to meet his payments to Kharas or his assignee and he (Todd) induced the defendant Aney to loan him the money with which to take up the Kharas mortgage. Aney loaned him (Todd) $400, and took the mortgage signed by Todd alone to secure the twenty notes of $20 each, to which we have referred. With the money so secured, Todd paid Saunders, the holder of the notes and mortgage by assignment from Kharas, the amount necessary tp take them up, and, after paying and canceling the notes, delivered them to Aney. Cox & Campbell were at the same time running a
Defendant has disposed of tbe property,' and, of course, converted tbe same. Plaintiff was allowed $213 on account of this conversion — probably on tbe theory that, in any event, be was entitled to tbe value of tbe subscription list, on which be admittedly bad a prior lien — which amount is less than tbe mortgage indebtedness; but, as be does not complain, we bave no occasion to consider tbe sufficiency of tbe allowance.
Tbe judgment seems to be correct, and it is affirmed.