Reid v. Abernethy, 77 Iowa 438

Reid v. Abernethy

77 Iowa 438 | Iowa | 1889

Given, C. J.

1 mortgage ' sfven for se¿uredaebt. I. The mortgage in question, having been executed and recorded long before the levying °i the attachment, is prior in point of date. It is claimed by appellants that the mortgage and notes were not delivered to nor accepted by the defendant until after the levying of their attachment. The defendant and her husband, testifying in April, 1888, say that the defendant did not have the notes and mortgage at the time the assessor called in 1885, but each say that she had them since, three or four years prior to the time they were giving testimony. This shows a delivery long prior to the levying of plaintiffs’ attachment. The defendant testified that the notes produced on the trial were not the original notes given with the mortgage; that the original notes had been written upon by the children, and were given up, and the notes produced were taken in lieu thereof. Mr. Roberts testified that he drew the notes produced on the trial at some time since June, 1886, as he knew from the fact of having changed the color of ink used in his bank at that date. We think it very clearly appears that the mortgage and original notes had been delivered to the defendant and accepted by her before the suing out of the plaintiffs’ attachment. The fact that the notes originally given had been substituted by- others for the same amount, and upon the same terms, would not affect the security.

2. -aeiivery ' what amounts II. It also appears from the testimony that the mortgage in question was executed and placed of record *n P’arsuance °f a previous agreement on the part of T. O. Johnson to give his mortgage to the defendant on the land described *441to secure four thousand dollars. We think, with such agreement, the mortgage may be deemed delivered and accepted when filed for record. Day v. Griffith, 15 Iowa, 104; Deere v. Nelson, 73 Iowa, 187.

III. It does not appear when the indebtedness of the Johnsons to the plaintiffs accrued, nor is it material, as the plaintiffs have failed to sustain their allegation that they were told by the Johnsons that they owed the defendant nothing, and that the defendant knew of such representations, and that they were made to obtain credit.

3. cred itor’s wife.: consideration. IV. The consideration for the notes and mortgage was an indebtedness from the Johnsons to Alexander Abernethy, plaintiff’s husband. It is not a question oE Alexander Abernethy’s right to , . transfer the indebtedness to his wife, either with or without consideration, but whether there was an indebtedness from the Johnsons to him for which the notes and mortgage were given. While the transaction out of which the indebtedness is claimed to have arisen seems to be very poorly remembered, yet we think, upon the whole testimony, the preponderance is-in favor of the conclusion that the Johnson brothers were indebted to Alexander Abernethy in the full sum of four thousand dollars, and that this mortgage was given in good faith, to secure that sum, and was given to the defendant because of an unwillingness on the part of her brothers to settle with Mr. Abernethy in any other way. We think the decree of the district court is fully sustained by the evidence, and it is therefore

Affirmed.