Iowa Lumber Co. v. Cassidy & Brother

Waterman, J. The facts which give rise to this controversy are as follows: On May 25, 1896, John Cassidy executed and delivered to Joseph Kessler a chattel mortgage on the property in question. On June 26, 1896, said John Cassidy also executed and delivered a chattel mortgage on said property to Catherine A. Cassidy. September 25, 1896, the firm of John Cassidy & Bro., and John Cassidy and Joseph Cassidy, members of said firm, executed and delivered a chattel mortgage on the same property to Lichty & Thomas j and on October 1, 1896, the mortgage to plaintiff was given, covering the same property, and executed by the same firm and its individual members. Plaintiff became the owner, by assignment, of the Catherine A. Cassidy mortgage, on October 15, 1896, and the claim in this action is in part based thereon. This action was begun by plaintiff, December 5, 1896, Joseph Kessler being a party defendant. In November previous Kessler had taken possession under his mortgage, and in December, two days after the present action was commenced, at a foreclosure sale thereunder, the property in 566 controversy was bid in by Elizabeth Cassidy, wife of John Cassidy. The trial court found that the mortgaged chattels were, at the time of the execution of the various instruments, mentioned, the property of the firm of John Cassidy & Bro. It is not disputed that John and Joseph Cassidy constituted said firm, but it is insisted on the part of appellants that John was sole owner of the property in dispute, and that the co-partnership which was engaged in contracting and building was interested only in the profits of the business. The evidence is in conflict as to the ownership of the property-. We need only say that we think the district court was justified in finding that the title was in the firm. We do- not, however,, regard this question as of much importance, for the mortgages, to plaintiff and to Lichty & Thomas were executed by John Cassidy as well as by the firm. II. It will be observed that, in the order of time, the mortgages stand as follows: (1) That to Kessler; (2) Catherine Cassidy, eight hundred and fifty dollars (now owned by plaintiff) ; (3) Lichty & Thomas; (4) the mortgage to plaintiff, one thousand four hundred dollars. All of the instruments were duly recorded. The description in the Kessler mortgage is as follows: “One boiler and engine ($400), extra engine ($19), sticker machine ($400), planer ($210),. mortiser ($130), tenon ($130), swing saw ($110), sticker machine ($210), band saw ($90), rip saw ($40), gig saw ($35), stagers, pulleys, and hangers ($65), belting ($185), knives and tools for machines ($80), shop- ($225).” There is no statement as to the possession, ownership, or location of the property, — nothing further to aid in its identification than what we have given. Such a description is insufficient to-impart constructive notice. Bank v. Felt, 99 Iowa, 532, and cases cited. III. But it is claimed by appellants that plaintiff and Lichty & Thomas had actual notice of the Kessler mortgage at the time their respective interests accrued. The testimony is in conflict. The trial court must have found against appel 567 lants on this proposition, and we are quite satisfied with its conclusion.' Liehty & Thomas were given by the district court a first lien for three hundred and fifty-five dollars and ninety-three cents, with interest, and the lien of the plaintiff, under the mortgage executed to it, for one thousand four hundred dollars, with interest, was given standing subject' to the lien of Liehty & Thomas. The Kessler mortgage was expressly held inferior to both these liens. For the reasons given we think the decree correct, and it is affirmed.