Diemer v. Guernsey

Given, J. [395] I. There is no question but that Ed S. Joselyn is indebted to each of these creditors in the amounts •claimed, except as to the last of the six notes executed to the plaintiff. This note was executed July 6, 1896, for ■$1,000, and we are satisfied that it represents a bona fide indebtedness. The several claims being thus established, we now inquire as to the rights of these mortgagees under their respective mortgages, and, first, as to whether the appellants Guernsey & Johnson are entitled to a lien under their mortgage as against the other mortgages. In August, 1893, Ed. S. Joselyn purchased a stock of merchandise from Guernsey & Johnson, then owned and kept at Dayton, Webster county, Iowa. In part payment, Joselyn, on the seventh day of August, 1893, executed and delivered his four promissory notes, three for $500 each, and one for $368.89, payable to Blanche^G. Johnson, a member of said firm. On the thirty-first day of August, 1893, Joselyn executed a mortgage on said merchandise to M. A. Guernsey and Blanche G. Johnson, conditioned for the payment of' said notes “to the said Gurnsey & Johnson.” Joselyn removed the merchandise to Tama City, Tama county, Iowa, where he kept the same on sale at retail in the usual course of such business. This mortgage was not filed for record until August 8, 1896, when it was filed in Tama county. This, it will be •observed, was after the mortgages to the plaintiff, to Olney [396] & McDaid, and tbe Simmons Hardware Company were exc-* cuted and recorded, and after the general assignment had been made to G. Y. Goodell. Appellees contend that appellants’ mortgage was withheld from record in pursuance of an agreement between the parties thereto, so as not to prejudice the credit of Joselyn as a retail merchant. This appellants deny, and say that they failed to record it only “by oversight, not understanding the necessity therefor.” Joselyn testifies to an express agreement that the mortgage should be withheld, from record, and this the appellants, and a disinterested witness, who was present, deny. We think the evidence fails to show such an agreement, but, if it did, it would be immaterial, as we view the case. The burden is upon appellees to show that they took their mortgages without notice of the existence of appellants’ mortgage, and this they have failed to do, but on tho contrary, it appears quite satisfactorily that the plaintiff and Olney & McDaid did have actual notice of its existence. The testimony of Mr. Johnson and of Mr. Duncan is quite conclusive as to plaintiff’s knowledge, and other evidence leaves no doubt but that Olney & McDaid also knew of it before they took their mortgage. 3 II. Appellants contend that the mortgages to appellees and the assignment to Goodell were one transaction, and together constitute a general assignment, and that, being-with preference to the appellees, the mortgage was void. The law is well established in this state that if, at the time of executing these instruments, it was the intention of Ed S. Joselyn to thereby dispose of all his property for the benefit of his creditors, they together constitute a general assignment, and, being with preference to certain creditors, are void. It is tho intention of Ed. S. Joselyn that we are to ascertain. See Letts v. McMaster, 83 Iowa, 449; In re Bloomfield Woolen Mills, 101 Iowa, 181; Creglow v. Creglow, 100 Iowa, 216. The first mortgage to plaintiff was made the 16th, and the second, [397] to correct errors, the 23d of July, 1896. The mortgages to Olney & McDaid and tlie Simmons Hardware Company were made July 23, 1896, and each mortgage recorded on the day of its execution. Tlie assignment was not made until July 25, 1896. We will not extend this opinion by discussing the evidence on this subject. It is sufficient to say that, while we have no doubt as to Joselyn’s insolvency, we do not find that he had any intention of executing a general assignment at the time- he made these. mortgages, nor indeed, until the day it was made. We do not think that the execution of these instruments was so connected in point of time, circumstances, and intention as to constitute a single transaction. It follows from the conclusions we have announced that the general assignment to G. Y. Good-ell is valid; that appellants are entitled to a prior lien under their mortgage as against Ed S. Joselyn, the assignee, and •other mortgagees; and that among them they are entitled to priority according to the order in which their respective mortgages were executed. The decree of the district court is reversed, and decree will be entered in harmony with this opinion. — Reversed. Granger, C. J., not sitting.