108 Iowa 490 | Iowa | 1899
— The assignment of the judgment against her husband by Mrs. Gatton to the plaintiff, her brother, was not filed in the office of the clerk or minuted on the margin of the judgment docket. Code, section 8986. But the sheriff was duly notified thereof immediately after the levy of the intervener’s execution on such judgment. Thereupon it was appraised, and sold subject to their assignment. This is fully established by the evidence, notwithstanding some conflict, though through oversight the bill of sale was not so drawn. The appellant contends that, as the assignment was executed as security, the title passed to the plaintiff, with constructive possession, and that the rule with reference to a levy on a mortgaged chattel applied. Campbell v. Leonard, 11 Iowa, 489; Gordon v. Hardin, 33 Iowa, 550; Wells v. Sabelowitz 68 Iowa, 238.
If this be true, then, as neither title nor possession was in the execution defendant, there was nothing of hers to levy on, and the title of the plaintiff was not affected by the sale. It is not a case where the owner’s title is disputed, and the sale made, and possession transferred in spite of his claim, as in Rand v. Barrett, 66 Iowa, 731. The possession of the judgment, if in plaintiff, was not disturbed, and his title expressly recognized. This does not mean that the