All argument of appellant practically concedes that the description is sufficient "bad the grain been upon the ground on which it had been raised" we are only to determine its sufficiency to impart notice after the grain has been harvested, threshed, and put upon the market. The query we are expected to meet will be better understood by the following, from appellant's argument: "For this court to sustain a rule of law that will permit a party to change entirely the identity of the property, and say that the purchaser in good faith, and for a valuable consideration, is bound thereby, seems to us to be a complete setting aside of the law which provides that a conveyance of personal property without change of possession, or where the vendor retains possession, shall be of no effect and validity without the execution and recording of an instrument conveying the same." persons were required to take notice of the mortgage made by Irwin to the inter. vener before the crop was severed from the ground, for the mortgage then came within the rule that, "in order to charge third persons with constructive notice of a chattel mortgage, the description, as contained in the mortgage, must direct the mind to the evidence whereby the precise thing conveyed may be ascertained. The query then is, how much less did the mortgage do in that respect, after the grain was threshed and offered on the market? or, how much less would such a mortgage enable one to identify the particular grain after it was threshed, than it would if the mortgage had been given on the grain after it was threshed and in the bin, describing it as wheat in a particular bin, on certain premises? Stress is placed on the fact that this grain was offered in open market in town. Now, the buyer on the market knew Irwin's grain while growing was mortgaged; and that the mortgage continued unsatisfied upon the record; and we think such a mortgage just as effectually directs the mind to evidence whereby a buyer in open market may know the identity of the grain, as if the grain was mortgaged after it was threshed, and then placed upon the market. It is true that in either case the identification is difficult, and legislation in this respect might serve a useful purpose; but we are not prepared to say that the difficulties are such that such mortgages as to third persons without actual notice are void, and such is the effect of the rule, as claimed. As we have said, the record was notice that the grain grown by Irwin on certain land was mortgaged. Irwin offered the grain for sale. This knowledge from the record was sufficient to put a purchaser on inquiry, and to our minds an inquiry would have disclosed the actual condition of the grain. The changed condition of the property, by being severed from the ground, and placed upon the market, does not, when viewed in the light of its practical effect. necessitate a change of the rule. A consideration of the question will lead to a conclusion that the same practical difficulties lie in the way of an incumbrance on threshed grain, stock, and products of a farm when taken therefrom to market places for sale. The ruling of the district court is in harmony with the general rule, long observed in this state, and we see no reason now to depart from it, even though other courts, under statutes quite similar, have held differently. The judgment is affirmed. WRIGHT V. SAUER, (SIBLEY LOANING CO., Intervener.) (Supreme Court of Iowa. Oct. 9, 1891.) Appeal from district court, Lyon county; G. W. WAKEFIELD, Judge. Action to recover the value of certain wheat by virtue of landlord's lien thereon. Judgment for the intervener, and the plaintiff appealed. D. D. McCallum, for appellant. O. J. Clark, for intervener. GRANGER, J. The facts of this case, and the law applicable thereto, are substantially like those in Wright v. Loaning Co., 49 N. W. Rep. 984, (decided at this term,) and, following that case, the judgment in this is affirmed. MANSON LOAN & TRUST Co. et al. v. (Supreme Court of Iowa. Oct. 12, 1891.) Where the county board of supervisors orders that all property be assessed for taxation at 50 per cent. of its actual cash value, and afterwards, when acting as a board of equalization, orders that 50 per cent. be added to all assessments on money and credits, the latter order is void, as it clearly creates an inequality in the taxation, instead of equalizing it. Appeal from district court, Calhoun county; J. P. CONNOR, Judge. Certiorari to declare invalid the action of the supervisors of the county, as a board of equalization, in raising the assessments of moneys and credits made against the plaintiffs. The district court adjudged that the action of the defendants complained of is illegal, and without authority of law, and therefore null and void. Defendants appeal. E. C. Stevenson and J. C. Kerr, for appellants. O. J. Jolley, for appellees. BECK, C. J. 1. The undisputed facts of the case are these: The board of supervisors, pursuant to the requirements of Code, § 821, made a classification of the assessable property of the county, specifically designating certain classes of property and the values to be assessed thereon, and entered an order that "all other property, not herein enumerated, the assessor shall assess according to value, in proportion to the foregoing valuation, which is based upon fifty per cent. of actual cash value." In obedience to this order, the assessors assessed plaintiffs, respectively, upon money and credits, in a sum specified as to each. Subsequently the supervisors, acting as a board of equalization, for the alleged purpose of equalizing the taxes, ordered, among other changes in the assessments, that 50 per centum be added to all assessments upon moneys and credits in all of the townships. There were various changes made in the assessments of other classes of property, in some instances in creasing and in others diminishing the assessed value; but it does not appear that there was any purpose or effort to increase the assessment of any other classes of property beyond 50 per centum of the actual cash value thereof, which the board of supervisors fixed as the rate of assessment, and which we must presume was obeyed by the assessors, and all assessments for money and credits in each town. ship were upon 50 per centum of the value thereof. by plaintiffs. The disposition we make of this case renders the consideration of a motion to affirm unnecessary. The decision of the district court is affirmed. MCCREARY V. SKINNER, Sheriff, et al. Where an insolvent merchant gives his wife a chattel mortgage on his stock, all the than 20 years, and of which there was no written evidence till the mortgage was given, and the wife admits on cross-examination, in a suit by an attaching creditor, that her purpose in taking the mortgage was "partly" to prevent other creditors from taking the goods, and it appears also that an attorney, with her consent, was given a prior mortgage to secure his fee for services in resisting other creditors, the mortgage should be held void, notwithstanding the jury find that the wife had no fraudulent intent in taking it. Appeal from district court, Page county; A. B. THORNELL, Judge. 2. The action of the board of equaliza-property he has, to secure a debt due her more tion in increasing the assessments upon money and credits did not, and could not, equalize the assessments upon that class of property; for it was equally assessed in each township. Neither could that action have effected an equalization of the taxes as between other classes of property and moneys and credits, for, as we have shown, we must presume the other classes were assessed at 50 per centum of their actual value, and, as is shown by the record, moneys and credits were assessed at the same rate. The assessments as to the various classes, including moneys and credits, were equal until the change by the board of equalization made an inequality by adding to the assessments of moneys and credits 50 per centum. The action of the board of equalization could not have been had with the purpose of equalizing an inequality, for none existed; but it was clearly had, if not for the express purpose, surely with the certain result, plainly to be foreseen, of creating an inequality in the assessments on money and credits when compared with other classes of property. 3. The jurisdiction of the board of equalization extends no further than to authorize it to equalize assessments. It did not authorize the changing of the assessment roll so as to cause inequalities. Its act, therefore, in this case, in increasing the assessments of plaintiffs, was illegal, and beyond its jurisdiction, and must be declared void. It is not a case in which the board erred in the exercise of its lawful discretion, for, as we have said, it had no jurisdiction to do any act the necessary result of which would cause inequality as to the assessments of various classes of property, and could exercise no discretion leading to that result. 4. Counsel for plaintiffs insist that the change in the assessment operated to add to the assessment roll property not before assessed. This is probably not a correct view. The assessment represented the value of the property assessed. Money and credits were, under the order of the board, assessed at 50 per centum of their actual value, so that an assessment of $500 was in fact upon $1,000 of money. The addition of 50 per cent. to the assessment did not increase the money assessed, but only increased its assessable value. But whether this view or the view of counsel be correct, it is very plain that the addition of the 50 per centum to the assessment of plaintiffs on moneys and credits created an inequality where none before existed, or, if an inequality did exist, it was increased by the unlawful acts of the board of equalization complained of Action to recover a certain stock of goods. Judgment for plaintiff, and defendants appealed. F. E. Clark and N. B. Raymond, for appellants. W. W. Morseman, for appeliee. GRANGER, J. The plaintiff is the wife of A. B. McCreary, who in February, 1886, was the owner of a stock of merchandise consisting of books, stationery, wall-paper, watches, jewelry, silver-ware, etc., and on the 22d of that month he made to the plaintiff a chattel mortgage thereon, to secure the sum of $873.32, due in six months. The mortgage, by its terms, gave to the mortgagor the right to sell, in the usual course of trade, from the stock, and from the proceeds of the sales to keep the stock at the present value; the mortgage to cover the additions thereto. Redhead, Norton, Lathrop & Co. was an attaching creditor of A. B. McCreary, and in March, 1886, by virtue of an attachment, seized the stock of goods thus mortgaged, and the issues in this case involve the validity of the plaintiff's mortgage, defendants' contention being that it is void as in fraud of creditors; and they rely upon the admissions of the plaintiff in evidence, and the following special findings of the jury, to sustain their position, upon which they moved the court for a judgment in their favor, notwithstanding the general verdict: (1) Was A. B. Mc. Creary at the time of the execution of plaintiff's mortgage, on or about February 22, 1886, insolvent? Answer. Yes. (2) Was A. B. McCreary at the time of the execution of plaintiff's mortgage, on or about February 22, 1886, and for some time prior thereto, being pressed by creditors for the collection of their claims? A. Yes. (3) Was it because A. B. McCreary was being pressed by his creditors that he and the plaintiff first talked of putting the mortgage in controversy on his stock of goods. attached by defendants? A. Yes. (4) Did A.B. McCreary, with the consent of plaintiff, place a mortgage upon the property in controversy prior to plaintiff's mortgage, to secure a note of one hundred dollars to S. C. McPherrin, on Iowa.) SHICKLE, H. & H. IRON CO. v. COUNCIL BLUFFS CITY W. W. Co. account of services which he was to render in the future as an attorney, in the event that plaintiff's mortgage was attacked by creditors? A. Yes. (5) Had the plaintiff up to February 22, 1886, ever made any demand of A. B. McCreary for the payment or security of the various loans which she claims formed the consideration for the mortgage in controversy? A. No. (6) Had the plaintiff up to February 22, 1886, ever received from A. B. McCreary any written evidence of the indebtedness which she claims was the consideration of the mortgage in controversy? A. No. (7) Did plaintiff's mortgage cover all the property owned by A. B. McCreary which was subject to execution? A. Yes." In addition to these findings, the plaintiff testified that her purpose in taking the mortgage was partly to prevent other creditors from taking the goods. In answer to a question if such was not her purpose, she answered, "Partly. This, with the answers to other questions put to her, admits of but the single conclusion that such was her purpose. The debt for which the mortgage was given was more than 20 years old, and consisted of money loaned to her husband, to be paid whenever she should want it to procure her a home, and no written evidence of the debt was ever given till 1886, when the mortgage in question was executed. The record, independent of her admissions as to her purpose, is a feeble showing of good faith, but with the findings and the admissions we think the motion for judgment for defendants should have been sustained. It is true that the jury returned other findings, to the effect that the mortgage was not taken with a fraudulent intent, but the difficulty with these findings is they override the plain admissions of the plaintiff against herself, which are to be taken as true. There is an attempt in argument to show that the admissions made on the cross-examinations should not prevail against other statements made by the plaintiff in her testimony. On the direct examination she said: "I had no other object in taking that mortgage besides the security for my note." Much reliance is placed on this statement to bring the point within the rule that the question of fact as to a fraudulent intent is one for the jury. It is to be borne in mind that the plaintiff is a witness in her own behalf, and that statements or admissions deliberately made against her interest are to be taken as true; and we are to determine from her entire evidence if the statement that her motive in taking the mortgage was in part to hinder and delay creditors was intentionally made, and of that we think there can be no doubt. The crossexamination was quite thorough, and her attention was in many ways drawn to the importance of that particular point in the case; and indirectly, in different ways, she gave expression to the same conclusion, as that she believed it was "the reading of the mortgage" that she was to "let the mortgage stand until somebody else troubled him;" that she said when the mortgage was taken that he was to go on with his business until she "saw he 987 was going to have business trouble," and that she intended to keep the creditors off "if he could go on with his business." It unquestionably appears that she and her husband thought when the mortgage was given that its validity would be tested by the creditors, and she consented that a prior mortgage for $100 might be placed on the stock, to secure an attorney's fee for services to be performed in resisting the creditors of her husband in an effort to set aside the mortgage. Taken together, the testimony clearly imports an in. tent on her part to admit that her purpose was in part to aid her husband in preventing his creditors from securing their pay from the stock of goods, which was all the property he possessed. The legal conclusion, then, from the finding by the jury and the admission by the plaintiff, is that the mortgage as to creditors is Void. See, on this point, Davenport v. Cummings, 15 Iowa, 219; Wilson v. Horr, Id. 489; Chapel v. Clapp, 29 Iowa, 191; Chapman v. Ransom, 44 Iowa, 377; Kohn v. Clement, 58 Iowa, 589, 12 N. W. Rep. 550; Craig v. Fowler, 59 Iowa, 200, 13 Ñ. W. Rep. 116; Headington v. Langland, 65 Iowa, 276, 21 N. W. Rep. 650; Crawford v. Nolan, 70 Iowa, 97, 30 N. W. Rep. 32. With these views, the motion by defendants for judgment should have been sustained, and the cause is remanded to the district court for that purpose. Reversed. SHICKLE, HARRISON & HOWARD IRON Co. v. COUNCIL BLUFFS CITY WATER-WORKS Co. (Supreme Court of Iowa. Oct. 12, 1891.) Three corporations made a tripartite contract, whereby the first, plaintiff iron company, was to furnish the second, a construction company, with water pipes and castings to build water-works for the third, defendant water-works company. The contract stipulated that the con struction company was to pay plaintiff iron company a certain per cent. weekly, and the balance monthly, for all pipes and castings delivered during the previous month; "all payments to be made upon drafts drawn at three days' sight by the said iron company upon the said construction company." It also stipulated "that the said water-works company shall, and it does hereby, guaranty the faithful performance by the said construction company of all the obligations herein set forth, and all of the provisions of this agreement, and to this end will and hereby agrees to deposit, as security for the full performance of said obligations, the sum of $10,000, the same to be applied to the payment to the said iron company of any such sum as the said construction company may fail to pay in the manner herein set forth." The construction company failed to pay a balance of $5,429.02, and the iron company sued the water-works company on its guaranty. Held, that defendant was liable for the whole of the unpaid balance, and that its liability was not restricted to payment of drafts that the construction company failed to pay. * * * Appeal from district court, Pottawattamie county: N. W. MACEY, Judge. Action to recover on a contract of guaranty. Judgment for plaintiff, and the defendant company appealed. Wright, Baldwin & Haldaine, for appel. lant. John L. Webster and J. Lyman, for appellee. GRANGER, J. The plaintiff company is a corporation organized under the laws of the state of Missouri, the defendant company is a corporation organized under the laws of this state, and the American Construction Company is a corporation or. ganized under the laws of the state of New York. These corporations are, for the sake of brevity, designated in the record as the "Iron Company," the "WaterWorks Company," and the "Construction Company," and these designations will, for the same reason, be followed in the opinion. The business of the Iron Company is the manufacture and sale of iron pipes, castings, etc.; of the Construction Company, that of constructing systems of water-works; and that of the WaterWorks Company, the operation of a system of water-works at Council Bluffs, Iowa. On the 12th day of April, 1882, the three companies entered into a written agreement, in which it was recited: "That whereas, the said Construction Company is now engaged in constructing a system of water-works for the said water company at the city of Council Bluffs, and will require in the construction thereof a cortain quantity of cast-iron pipe, and the special castings properly belonging thereto, all of which is set forth in a specification annexed hereto; and whereas, the said Iron Company is prepared to furnish all of said pipe and special castings, and is willing to deliver the same at the city of Council Bluffs at the period, and for the prices, and on the terms hereinafter named: Now, therefore, this agreement witnesseth, that for and in consideration of the premises, and of the sum of one dollar, lawful money of the United States of America, this day in hand paid by each of the parties hereto to each of the other parties hereto, the receipt whereof is hereby acknowledged, and in consideration of the covenants and agreements to be hereinafter kept by each of the parties hereto, the said parties of the first, second, and third parts hereto have agreed, and do hereby agree, each with the other, as follows, that is to say: First, that the said Iron Company shall and will furnish all pipes and special castings named in the specifications annexed hereto, and strictly in accordance with the provisions therein named, or the modifications therein made, and shall and will deliver all of the same on cars at the city of Council Bluffs, Iowa, within five months from the date hereof; shipments to commence immediately, and to proceed in the following order, namely: The four, six, aud eight inch pipe, and the special castings properly belonging thereto, shall be delivered within sixty days from the date hereof; and the ten, twelve, sixteen, twenty, and twenty-four inch pipe, and the special castings belonging thereto, shall be delivered within three months thereafter." The second and third paragraphs are unimportant in this con nection, being specifications as to quantity and price of the pipe and castings. Then follows: "Fourth. That payment for said pipe and special castings shall be made weekly by the said Construction Company to the said Iron Company of ninety (90) per cent. of the value of all pipe and special castings shipped, and monthly payments in full shall be made on or before the fifteenth (15) day of each month for all the said pipe and special castings delivered on cars at Council Bluffs in the month preceding; all payments to be made upon drafts drawn at three days' sight by the said Iron Company upon the said Construction Company. Fifth. That the said Water-Works Company shall, and it does hereby, guaranty the faithful performance by the said Construction Company of all the obligations herein set forth, and all of the provisions of this agreement, and to this end will and hereby agrees to deposit, as security for the full performance of said obligations, the sum of ten thousand dollars in the hands of the Commercial Bank of St. Louis, the same to be applied to payment to the said Iron Company of any such sum as the said Construction Company may fail to pay in the manner herein set forth; and the said Iron Company agrees to allow the said Construction Company interest at the rate of six per cent. per annum on the above ten thousand dollars, or any part thereof not used for the purpose of payment as above set forth, and the total amount, with accrued interest, to be applied upon final payment under this contract." Pursuant to the contract, the plaintiff company furnished pipe and castings for the construction of the water-works at Council Bluffs, on which it claims an unpaid balance of $ɔ̃,429.02, with accrued interest, and this action is brought to rerover from the defendant company on its contract of guaranty. The contention in the case arises on a construction of the contract of guaranty; it being that of the defendant company that its obligation was only "to make good dishonored or repudiated drafts drawn by the Iron Company or the Construction Company;" that it only guarantied that the Construction Company would meet these drafts." Appellee's contention is that the undertaking of guaranty is broader, and of a general, rather than of a technical or special, character. We think, when the contract is considered in all its parts, the position of appellee must be sustained. There is at first view a seeming force to the idea that, because of the words in the contract, "all payments to be made upon drafts drawn at three days' sight by the Iron Company upon the said Construction Company.' the obligation of guaranty arises only when the facts show a failure of the Construction Company to pay upon drafts so drawn and presented. But a closer scrutiny of the language of the contract and the purpose of the parties, as indicated by its use, leads to a different and far more satisfactory conclusion. We think it unmistakable from the record that at the commencement of this suit the Construction Company was indebted to the plaintiff company to the amount specified in the judgment rendered by the district court, and that the failure of payment of the Construction Company in no manner depended upon a neglect or failure to present drafts therefor. We are then to consider the point of defendant's liability, with the fact in view that the Construc tion Company has not met its obligations, unless we hold that no obligation arises because of a failure to observe a useless formality in presenting the drafts when payment would be refused or neglected, which we are neither asked nor disposed to do. With the obligation of the Construction Company thus fixed for the purposes of the case, we properly come to the question of the defendant company's obligation under the contract of guaranty, and must look to the language giving rise to it The fifth paragraph of the contract is the only one specifying its obligation, and it provides "that the said WaterWorks Company shall, and it does hereby, guaranty the faithful performance by the said Construction Company of all the obligations herein set forth, and all of the provisions of this agreement, and to this end will and hereby agree to deposit as security," etc. It contains no words limiting the obligations of guaranty to the payment of dishonored drafts, but, on the contrary, it expressly guaranties the performance by the Construction Company "of all the obligations" set forth in the contract. The obligations of the Construction Company for payment are those arising under the contract, and we see no escape from the conclusion that the defendant company is liable. This holding effectuates justice, and is in harmony with the rule that in construing contracts of guaranty technicalities should be avoided, and the reasonable intent of the parties, as it may be gathered from all parts of the contract, should prevail. See, as more or less supporting the rule, Wadsworth v. Smith, 43 Iowa, 439; Tootle v. Elgutter, 14 Neb. 158, 15 N. W. Rep. 228; Weiler v. Henarie, 15 Or. 28, 13 Pac. Rep. 614; Bank v. Coster, 3 N. Y. 203; Dobbin v. Bradley, 17 Wend. 422. With these views, the judgment of the district court must be and is affirmed. BENJAMIN V. SHEA, Clerk of District Court. (Supreme Court of Iowa. Oct. 12, 1891.) ATTACHMENT-FAILURE TO ENTER LEVY-LIABIL ITY OF CLERK EVIDENCE-APPEAL. 1. Where, in a suit against the clerk of the district court for damages sustained by reason of defendant's neglect to enter the levy of an attachment on land in the incumbrance book kept at the county-seat, by which neglect the lien of the attachment was lost, plaintiff assumes the burden of showing that the attachment debtor owned the land, he cannot, for the first time on appeal, be heard to say that the burden was on defendant to show that the attachment debtor did not own the land, or that it was worth less than the debt. 2. Where plaintiff assumes the burden of showing that the attachment debtor owned the land, but fails to do so, he cannot recover of the clerk for his failure to enter the levy of the attachment in the incumbrance book, thereby losing the lien of the levy. 3. The attachment debtor's ownership of the land at the time the attachment was levied cannot be shown by his own testimony, but must be shown by the best evidence. 4. Under Code Iowa, § 3010, requiring the return of an attachment to state the facts constituting the service of the writ, a return which merely states that the writ was "duly served" is insufficient. 5. An execution found with the papers in a case, and purporting to have been issued therein, but not bearing the clerk's seal or filing mark, is not sufficiently identified, as having been issued in such case, to render it admissible in evidence in another action. Appeal from district court, Pottawattamie county; H. E. DEEMER, Judge. Appellant commenced an action in the district court at Avoca against Anderson Davis on two unmatured promissory notes, executed by Davis to W. H. Longanecker, in which action an attachment was issued and levied upon certain land as the property of Davis. Entry of the levy was made in the incumbrance book kept at the clerk's office at Avoca, but, through neglect of the clerk, was not certified to nor entered in the incumbrance book kept in the clerk's office at the county-seat. William Miller, having purchased the land after the levy, intervened in that action, and judgment was entered discharging the land from the attachment. See Benjamin v. Davis, 73 Iowa, 715, 36 N. W. Rep. 717. Judgment was afterwards rendered against Davis on the notes. Appellant alleges that Davis was the owner of the land levied upon; that he has no other property; and that by the neglect of the clerk plaintiff is damaged to the amount of his judgment. Among other defenses set up in the answer is a denial that Davis owned the land attached, and that at the time the land was discharged from the attachment the notes were not due; that the indorser was solvent; and that appellant failed to make demand of payment, and give notice of non-payment to the indorser, thereby releasing the indorser, whereby he is estopped from maintaining his claim against defendant. The case was tried to the court, and judgment entered for defendant upon a finding that "there is no proof that Anderson Davis was the owner of the land at the time of the levy of the attachment, and that plaintiff, after discovery of the neglect of the defendant, failed to protect the defendant from injury by protesting the notes." Plaintiff appeals. Walter Hart & McCabe, for appellant. Smith and Sapp & Pusey, for appellee. GIVEN, J. 1. Appellant assigns as errors a number of rulings admitting and excluding testimony, all of which we have examined, and fail to find any prejudicial error in the rulings. A paper purporting to be an execution in the case of Benjamin v. Davis was properly excluded, as it did not bear the clerk's seal or filing mark, and was not otherwise identified than by being found with the papers in that case. The appearance docket showed in that case, "Writ of attachment returned, and duly served." The words "duly served" were properly excluded, as section 3010 of the Code requires that the fact constituting the service shall be stated in the return. Aultman v. McGrady, 58 Iowa. 118, 12 N. W. Rep. 233. Davis' ownership of the land attached was in issue, and called for the best evidence; hence there was no error in excluding Davis' testimony as to his ownership. |