80 Iowa 512 | Iowa | 1890
— The Johnson Directory Company made to the plaintiff’s cashier, on the twenty-third of June, 1887, its note for three hundred and seventy-five dollars, and as collateral thereto deposited with the payee the note in suit for five hundred dollars, under a written agreement that the collateral note might, if the principal note was not paid at maturity, be sold at public or private sale, at the option of the holder, and the proceeds applied to the expenses of sale, and the payment of the principal note. The principal note was after maturity put in judgment, and the judgment provided for the sale of the collateral note on special execution. By mistake, a general execution issued in lieu of a special one, and the note was sold thereon, and bid in by the plaintiff; and it brings this suit to recover of the makers.
The defense urged is that they made the note to the Johnson Directory Company as accommodation
There is merit in the rule that, if a lienholder disregards his rights thereunder, and intentionally seeks to create a lien on the same property by other means, and to hold the property thereunder, he shall be held as having waived his prior lien, for the two are inconsistent ; and authorities are numerous in support of such a view, and those cited by appellees are of that character. But there is no merit in a rule that a mere mistake as to the character of the execution under which a sale is made, as that it was general instead of special, will divest the pledgee of the benefits of his security as such. No authority or reason is given us to sustain such a holding. We quote the following from appellees’ brief, as it evidences the character of the authorities cited in support of their position: “The moment the pledgee voluntarily parts with his possession, or claims the right to detain the goods upon a
Reversed.