Taylor v. Wendling

Servers, J. 1. judgment: joclSfas evidenoe of. 2. evidence: objections to: wbat considered on appeai. I. The defendant Wendling, for the purpose of establishing his lien, offered in evidence a certified abstract of the judgment docket of the district j & com’t of the county in which the land is situated, ¶0 evi(jence the plaintiff objected, on the ground that it was “ irrelevant, immaterial and incompetent.” The objection was overruled, and it is renewed in this court. In Moore v. McKinley, 60 Iowa, 367, it was held that the judgment docket is secondary evidence. In that case no objection was made to the evidence in the lower . - . court. JN or was there m this case that the evidence was secondary, but that, conceding it to be primary evidence, it was immaterial and incompetent. The evidence is both material and competent,- and the objection that it is secondary cannot be urged for the first time in this court. 3. moktgage : indebtedness: fraud.01 II. The plaintiff’s mortgage is first in point of time, but the defendants pleaded that it was given to hinder, delay and defraud the creditors of the mortgagor, who, at the time it was given, was insolvent. The mortgagor, being largely indebted, executed, at the solicitation of an attorney, certain mortgages for the purpose of securing certain of his creditors, and then executed the mortgage in question, because “he was indebted to his wife for money that she had let him have.” The amount he was so indebted was not stated. His wife was not present at this time, and it is not certain that she had any knowledge of the mortgage until after it was recorded. The mortgage was given to secure a note for $3,000, payable in one year after date, with ten per cent interest. The note was executed at the same time the mortgage was. The person who draughted the mortgage testified that the mortgagor, in addition thereto, [564] “ selected some $2,000 or $3,000 of notes and accounts, and transferred them to his wife.” Counsel for appellant insists that this evidence should not be credited, but there is nothing in the record W'hich will authorize us to disregard it. There is no certain and direct evidence that the mortgagor was indebted in any sum whatever to his wife at the time the mortgage was executed, but there is evidence showing that several years prior thereto she had let him have not exceeding $1,250. The mortgagor, then, being in failing circumstances, and actually insolvent, executed to his wife a mortgage for $3,000, and gave her selected notes and accounts of the supposed value of at least $2,000. It lias been held that a mortgage given for a sum larger than the legitimate indebtedness, in the absence of explanatory evidence, is a badge of fraud, and may, in and of itself, be sufficient to establish a fraudulent purpose. Davenport v. Cummings, 15 Iowa, 219; Butts v. Peacock, 23 Wis., 359; Tripp v. Vincent, 8 Paige, Ch., 176; Beeler's Heirs v. Bullitt's Heirs, 3 A. K. Marsh., 280; Lynde v. McGregor, 95 Mass., 172; Wood v. Scott, 55 Iowa, 114. It may well be presumed, in the absence of any evidence to the contrary, that the notes and accounts were amply sufficient to secure the indebtedness from the mortgagor to his wife. We think the burden was on the plaintiff, under the circumstances, to show the value' of the notes and accounts, and the amount of the indebtedness, if any in fact existed. But, conceding that there was such indebtedness to the amount of $1,250, we think there was no consideration for the mortgage, and that it is fraudulent and void as to existing creditors. 4. fbaudxjgage? 'attacherty £o°r c?ei?t of mortgagee: priority over assignee of mortgage. III. The defendant Anna Pitzinna claims that she is an attaching creditor, and therefore the mortgage is void as to her. The real estate attached was owned by Wenzel Taylor. Barbara Taylor, his wife, and mortgagee, had no interest therein except her ° . . .. distributive share contingent upon her surviving oro her husband, and as such mortgagee. The [565] attachment was issued against Barbara Taylor alone, and the real estate was attached as her property. It cannot be successfully maintained, we think, that Barbara Taylor had any interest in the real estate which could be attached, and a lien thereby established thereon against the owner. It does not appear from the record before us that the defendant Pitzinna is a creditor of "Wenzel Taylor. All that appears is that the latter gave her a note; but it is not sought in this action to have it established as an ■ indebtedness against him. The decree of the circuit court in favor of Anna Pitzinna must be reversed, and as to the defendant "Wendling it must be Aeeírmed.