In re Assignment of Guyer

Beck, J. i. assign.MISNT for benefit of po?t‘of!as-re" s^gnee;pleadI. Counsel for appellant, the Buell Manufacturing Company, first insist that the answer of Atwell, the appellee, does not raise any issue for trial. We . J are of the contrary opinion. The exceptions to reP°rt object to appellee’s mortgage on the groun(j that, under it, he has no right to preference, and holds no lien on the property. The answer sets up the note of the assignor to the appellee, and the mortgage given to secure it, and claims under it a lien upon the goods prior and senior to the demands of all other persons, and asks that the assignee be directed to first pay the debts of the assignor'out of the proceeds of the mortgaged property. The question of the priority of the appellee’s mortgage is thus fairly and plainly put in issue. This being a special proceeding authorized by Code, § 2121, wherein no directions are found for pleadings, further than exceptions by creditors objecting to claims of other creditors, and prescribing that thereon the court shall proceed to hear the proofs of the parties, it is quite probable that no further pleadings are required by the statute. [587] 2-_. prior vSidflff eon-delivery!11' [586] II. The circuit court found, among other matters which need not be specially mentioned, the following facts: (1) The [587] assignor, at the time the debt was contracted, which was for goods purchased of Atwell, to be added to his stock of merchandise, agreed with Atwell that, in case of any financial trouble happening to the assignor, he would, by a mortgage upon his stock of merchandise, secure Atwell. (2) The assignor, becoming financially embarrassed and pressed by his creditors, advised Atwell that he was about to execute a mortgage, and this he did on the same day he sent such advice. (3) The mortgage was delivered to O. Mosher, for the benefit of Atwell. Mosher was not the agent for Atwell, but he caused the mortgage to be recorded upon the day of its execution. (4) On the next day the assignment was made. (5) It was the purpose of the assignor, from the first, to secure Atwell, and the mortgage was made in pursuance of such purpose, and of the agreement with Atwell. * III. It is urged that the agreement between the assignor and Atwell for the execution of the mortgage can have no force and effect, and can give Atwell no right, for the reason that it is without consideration. The ready answer to this objection is that the consideration of the debt was the consideration of the agreement, just as it was of the note which was given for the debt. The note was given as a security for the debt; so was the mortgage. The agreement looked to the giving and perfecting of security, and this consideration of the debt was the consideration of all these contracts for its security. Because the agreement was not performed when made, at the time the debt was contracted, it is not, therefore, invalid, as being without consideration. IY. In the case at bar the parties agreed, when the debt was contracted, that the mortgage should be executed upon the happening of a specified event, and should cover property specifically named. The event happened, and the mortgage was then executed. The law will presume that the mortgagee assented to the mortgage. Indeed, the finding of the agreement establishes the assent without the aid of pre [588] sumption. His assent expressed in the agreement was intended to and did continue up to the execution of the mortgage. The mortgage, being, in pursuance of the agreement, upon property specified therein, is valid, and creates a lien in favor of the mortgagee. Everett v. Whitney, 55 Iowa, 146. The facts appearing in the case at bar, that the agreement to execute the mortgage was made when the debt was contracted, and specified the property to he covered by the mortgage, distinguish it from Cobb v. Chase, 54 id., 253, and Cole v. Dealham, 13 Id., 551, in which like facts do not appear. Y. The mortgagor having, by agreement, bound jbimself to execute the mortgage, and the mortgagee having assented thereto and agreed to accept it, the mortgagor would be authorized to file it for record, and the person to whom he delivered it was authorized to do 'this for him as his agent. The deposit of the mortgage in the recorder’s office operated as a delivery to the mortgagee. YI. It will be observed that, in our view, the case wholly turns upon tbe fact that the execution and delivery of the mortgage was in pursuance of and compliance with a sufficient prior agreement between the parties. It therefore becomes unnecessary to consider positions of counsel upon other questions. The judgment of the circuit court is Affirmed.