Collins v. Gregg

WatbbMAN, J. I. After the evidence was all in,, plaintiffs filed an amendment to- their reply, which on motion was stricken from the files. This pleading set up that the-chattels transferred to defendant by the bill of sale had been? by him negligently permitted to be wasted and lost, by not asserting his rights against certain attaching creditors, and! [509] that their value was three thousand dollars; and it was prayed that this amount be made a charge against defendant 1 in plaintiff’s favor. This, it strikes us, is not proper matter for a reply. Marder v. Wright, 70 Iowa, 42; Jones v. Marshall, 56 Iowa, 739. It is said that this amendment was made to conform the pleadings to the proof; that it was formal only, and should have been permitted to stand. But to this we cannot assent. It is in legal effect a counterclaim. The evidence upon which it is predicated was all objected to, and was received only because this is an equity action, and all evidence offered must be. made of record. It is doubtless true that in an action of this character, in the- absence of this reply, defendant should be charged with all items for which he was legally obliged to apcount, but this fact furnishes no reason for permitting this pleading to stand. ' As a reply, it had no place in the record. We do not see, however, why the plaintiffs could not have protected their rights by asserting this mortgage under Chapter 117, Acts Twenty-first General Assembly, and thus have prevented .the levy of the attachments, under which it is claimed the chattels were taken. The law does not give authority to levy in case the mortgagee does, assert his rights. In Gordon v. Hardin, 33 Iowa 550, the right of the mortgagor to complain of the levy of an attachment on the mortgaged chattels was recognized, although the judgment went in favor of the mortgagee, who intervened. The old rule, that a mortgagor of chattels had no interest that could, be levied upon, was not established in order to protect him against other cred-ito-rs; 2 and the statute to which we have referred, which under certain conditions permits such levy, must not be construed as requiring the mortgagee to take any steps for the purpose solely of shielding the debtor’s property. So far as the plaintiffs are concerned, their property was subject alike to both claims. It is only the mortgagee who can complain that it was not applied upon the security which he held. We do not think the averments of this pleading malee a legal claim against defendant. [510] II. The evidence taken in relation to the state of the accounts between the parties is very voluminous and conflicting. The trial court held plaintiffs bound by the voluntary settlement made on September 1, 1894, when they executed the note for one thousand three hundred and eighty dollars and fifty cents for the then admitted balance due oa the account. This finding we believe is correct, and should be sustained. Some claim is made on the part of appellants of fraud in obtaining this note, and of unwarranted charges of interest in computing the amount which was to be included therein, but we do not find that either of these questions is raised by the pleadings. The facts stated in the original reply as constituting the fraud are not sufficient. Neither do we think the testimony justifies or sustains the charge of fraud in inducing the execution of this note. III. After defendant received the deed and bill of sale mentioned in the first count of the petition, he purchased at a discount other outstanding claims against plaintiffs, and 3 now insists that those instruments stand as security for the claims so procured. At the time this deed and bill of sale were made, plaintiffs owed defendant a sum in excess of three thousand dollars. The instrument of defeasance then executed contains a provision that recon-veyance shall be made when the grantor shall pay to the grantee “a sum of money equal to all the claims and evidences of indebtedness that said W. H. Qregg shall have against said B. L. and W. M. Collins.” Parol evidence was introduced to throw light on the meaning of the quoted language. This evidence is in conflict sharp and positive, hut after giving it due consideration, especially as it relates to the situation and condition of the parties, we feel justified in holding that the conveyances in question were made to secure future advances. It is urged on the part of plaintiffs that the claims set up by defendant as representing money advanced by him were purchased at a discount, and are now-put intoi the account at their face value-. This point is dis [511] posed of by our finding as to the settlement, which is conclusive on the parties, under the issues as we have them. Frost v. Clark, 82 Iowa, 299. IV. The finding of the amount due as made by the trial court is correct. We do not feel that we would be justified in setting out hero the mass of figures presented -in the record, in order to give our reasons for this conclusion. But one other matter remains for mention. Appellants' counsel, in reply to the argument of appellee, suggests, rather than argues, that the trial court erred in fixing a time 4 within which plaintiffs should make redemption; that the decree should have provided for a foreclosure of defendant’s securities. We might pass this, perhaps, without further mention, but we prefer to- say that the decree in this respect has support in White v. Lucas, 46 Iowa, 319. — Aekikmed.