
    Stickney et al. v. Stickney et al.
    
    1. Interest: payment delayed by litigation. The payment of plaintiffs’ mortgages was delayed by defendant’s resistance. They provided for interest. Held that interest at the stipulated rate was properly allowed pending the litigation.
    
      2. Landlord and. Tenant: title to property on farm. Where a tenant leases a farm and is to pay as rent one-half of all the products and stock raised thereon, he has a half interest in such products and stock, and it cannot be taken to satisfy the landlord's debts.
    3. Attachment: service by officer de facto. The service of an attachment by an officer de facto is valid as to the rights of other persons.
    
      Appeal from Benton District Qourt. — Hon. L. Q-. Kinne, Judge.
    Filed, May 27, 1889.
    Action in chancery to foreclose chattel mortgages. A decree was entered foreclosing the mortgages, and providing for the order of priority thereof. Defendant Lauderbaugh, whose mortgage is held to be last in the order of priority, appeals.
    
      Gilchrist & Haines, for appellant.
    
      Nichols & Burnham, for appellees.
   Beck, J.

I. The plaintiffs in this action seek to foreclose two chattel mortgages, executed by defendant Walter Stickney, to indemnify plaintiffs against their liability as sureties for him. The mortgages are upon the same property, viz., live-stock, grain and hay on certain specified farms in Benton county, owned by the mortgagor. The mortgagor subsequently executed to plaintiffs another chattel mortgage upon the same property, to secure an indebtedness arising for money loaned, the amount being ascertained by an accounting after-wards had. Prior to the execution of these mortgages, Snock had brought suit- against Walter Stickney, and seized, upon an attachment issued in the case, a part of the live-stock, —thirteen three-year old steers. Judgment in this case was entered after the mortgages above mentioned' had been executed. It has been assigned to plaintiffs’ mortgagor. The mortgagor being insolvent, plaintiffs took possession of the propérty under their mortgages, and caused it to be advertised for sale. Defendant Lauderbaugh, in his answer, alleges that the several mortgages of plaintiffs were executed for the purpose of hindering and delaying himself and other creditors of Walter Stickney; that the indebtedness secured by the mortgages has been paid by the proceeds of sales of mortgaged property; that he brought suit on certain promissory notes executed by Walter, and recovered judgment thereon. An attachment was issued in the action after the plaintiffs’ mortgages were executed and levied upon the property described in the mortgages, and plaintiffs were at the same time garnished. On the same day, but after the levy of the attachment, Walter executed to the defendant a chattel mortgage upon the property attached. Defendant’s answer is made a cross-bill, and he prays for a foreclosure and judgment which shall be prior to the claims of all other parties. It appears from the pleadings that See, a tenant of Walter, claims an interest' in the property covered by the mortgages as a part owner. This interest is admitted by plaintiffs, and is denied by defendant Lauderbaugh. Two successive agreements were entered into by all tbe parties, to the effect tbat tbe plaintiffs sell tbe property and bold tbe proceeds to be disposed of as tbe court may direct, tbe money realized therefor to stand in tbe place of tbe property.

II. Defendant Lauderbaugh insists tbat plaintiffs’ mortgages should not be enforced, for tbe reason that they were given to defraud Walter Stickney’s creditors. Tbe evidence clearly shows tbat the first two were given to secure plaintiffs, who became sureties for Walter for bona-fide debts. Tbe third mortgage was executed for a sum greater than was really due,- for. tbe reason tbat tbe parties bad made no settlement of tbe particular transactions out of which tbe indebtedness arose. We think that tbe district court’s conclusions as to tbe good faith of tbe mortgages and tbe amount due thereon are correct.

III. Tbe defendant thinks tbe court erred in allowing interest on these mortgages. All of them provided i°r invest, and we know of no reason why the decree should not allow it. Surely, defendant ought not to be beard to complain. By bis resistance to plaintiffs’ claim be has delayed their payment. Tbe plaintiffs ask for nothing, as to interest, which is not provided for in tbe mortgages.

IY. Defendant insists tbat See bad no interest in tbe property attached, and therefore tbe judgment in hi® favor is not warranted by the facts. We think differently. See leased a farm of Walter Stickney, and was to pay one-half of all tbe products, including all crops and fruits grown on tbe farm, and all hogs, cattle and calves raised on it. Of course, one-half was tbe landlord’s, and one-half the tenant’s. It would indeed be a harsh rule which would deny him an interest in tbe property, and make it all subject to tbe landlord’s debts. No such rule exists.

V. Counsel insist tbat tbe levy of tbe attachment in tbe Snock case did not bind tbe property, for the reason tbat it was all owned by Walter, and tbe sheriff treated it as property in which See had an interest under the lease. But, if counsel’s views as' to the law on this point should be correct in casé Walter did own the whole of the property, — which we are not prepared to adopt,— the fact upon which these views are based, namely, that Walter owned all interest in the property, is not established by the record. See surely had an interest in the property under his lease.

YI. Counsel argue that, as the officer to whom the attachment was delivered by the clerk for service, and wll° SerVed aS a “special deputy,” WHS not such an officer, or an officer at all, under lawful appointment, his acts were void. We think the record fails to show that he was not a duly appointed deputy. But, if he was not, he did hold the writ, and he did seize the property, and make return of his doings as an officer. He was an officer de facto, if not de jure. It would surely be a harsh rule which would defeat litigants, and overthrow liens, on the ground that one serving writs did not in fact lawfully hold the office of deputy, or was not appointed to serve the writ. The rights of litigants, relying upon the acts of executive officers, are better protected. The person having color of right to the office of deputy-sheriff, to whom a writ is delivered by the clerk of the court issuing it, and who makes service and return thereof, though he be not an officer dejwe, is recognized by the law as an officer defacto, and his acts are valid as to the rights of other persons. The foregoing views dispose of all questions in the case. The judgment of the district court is

Affirmed.  