Amelia C. Lohr, as assignee, and F.S. Lohr and the appellees have each filed separate petitions for rehearing.
The petition of Amelia C. Lohr is overruled. *Page 987
As to the petition of F.S. Lohr, owing to a confused record, we said in the former opinion that F.S. Lohr was entitled to one-half of $6,856.89, or $3,428.44, on his chattel mortgage. Our attention is now called to an error in figures, and after making the proper deduction, the mortgage fund is found to be $3,731.51, from which should be deducted his share of the former costs of administration which we have there fixed at $300, leaving a net amount in the hands of the assignee to be applied on this chattel mortgage of $3,431.51. This mortgage was originally for $4,500, under date of June 24, 1921. Five Hundred Dollars have been paid on the principal, leaving a balance due of $4,000.00. As we have above found that the total sum in the hands of the assignee to be applied on this chattel mortgage is $3,731.51, this amount is insufficient to pay the face of the mortgage, to say nothing about interest. This being true, the rule referred to in the original opinion in Leach v. Sanborn State Bank, 210 Iowa 613, would apply.
It is however found in the record that the assignee had this fund on deposit in a bank drawing interest at the rate of 4% payable semi-annually, and whatever interest the assignee collected from this fund from the bank should be paid to the chattel mortgage holders. The former opinion will be modified in this respect, and otherwise, so far as the petition of F.S. Lohr is concerned, said opinion is adhered to and the petition for rehearing overruled.
The appellees insist that the statement made in division II of the opinion with reference to the priority between the chattel mortgage and taxes is not the law under the decisions of this court. This paragraph contains one misstatement where it is said "the taxes in controversy were never a lien on the property." The statement should have been qualified by saying that the taxes were never a lien on this property, superior to that of the chattel mortgage.
[5] Section 7205, Code, 1927, makes such taxes a lien, but does not give them priority. There can be no question that the legislature had the right to make taxes a paramount lien by so declaring by statute, but in the absence of such declaration, taxes declared to be a lien are not a first lien. Bibbins v. Clark Co., 90 Iowa 230. The general subject is discussed and authorities collated in 37 Cyc. 1143 et seq. *Page 988
We are satisfied that the amount of $300 is a fair share of the administration which should be charged to the appellee mortgage holders.
The original opinion overruled the motion to dismiss the appeal of F.S. Lohr, and complaint is made as to that ruling.
The motion was overruled on the ground that the non-objecting creditors (who were not served with notice of the appeal) were not parties within the meaning of sections 12834 and 12837, Code, 1927. The ruling made thereon in the original opinion is adhered to.
With these modifications, the petitions for rehearing are overruled.