In re Assignment of Wise , 121 Iowa 359 ( 1903 )

Ladd, J.

Under the contract, intervener retained title to the goods as security for the purchase price. As ■these remained in possession of the assignor, and were un-disposed of when the deed of assignment was executed, it is of no consequence that the agreement was never recorded. The assignee acquired no better title to the property than had Wise, the assignor. Arnold v. Grimes, 2 Iowa, 1; Roberts v. Corbin, 26 Iowa, 316; Warner v. Jameson, 52 Iowa, 70; Hooven etc., Co. v. Burdette, 153 Ill. 672 (39 N. E. Rep. 1107.) He took the property subject to all equities, liens, or incumbrances existing against ’the same in the hands of the insolvent, and was not a ■bona ñde purchaser for value. See decisions collected in 4 Cyc. 219. And as the intervener was 'entitled to the return of the property as against Wise, we know of no ¡reason for denying him the enforcement of the contract ;as against the assignee.

It is suggested that the proper remedy was by replev-ing the goods, instead of asking for their return through a petition of intervention. The point was not made in the ■district court, and cannot be raised here for the first time. But as the property was in custodia le.qis (Hamilton-Brown Shoe Co. v. Mercer, 84 Iowa, 537,) it is doubtful if the method pursued, long approved in practice, can be thought objectionable.

The intervener asked that the articles mentioned be-returned, and that, after deducting the value of all so. returned from the note, the remainder owing thereon be established as a claim against the estate. Appellee insists-that the remedies sought were inconsistent. Not so, for the title to the property was retained by the vendor as-security, and all prayed was the allowance of that part of the debt not satisfied by retaking the articles on hand. As the contract fixed the price of the articles to be ordered, returned, and for which credit should have been given, the-evidence of the agent as to value was immaterial. No-demand was essential prior to the application to the court, for the order, nor was the company called upon to surrender its note until satisfied in the manner stipulated.. An order should have been entered as prayed. — Reversed..