40 Iowa 104 | Iowa | 1874
I. Plaintiffs proved the purchase of the property by them from a party who held title by purchase from the execution defendants. These transfers were not evidenced by written instruments duly acknowledged and recorded. The plaintiffs introduced evidence tending to establish a delivery' of the property to plaintiffs, and that it had passed into their actual possession.
The court instructed the jury in the language of Revision, Section 2201, Code, Section 1923, which is to the effect that
The jury were also directed that if “ there was no change of the possession of the property ” upon the. sale by the defendants in attachmént, but it still remained in their actual possession, “ and the defendant had no notice of such sale previous to the levy,” and the transfer by the execution defendants was not acknowledged and recorded, the defendant was entitled to recover. Plaintiffs insist this instruction is erroneous. It is 'in the first place claimed that the expression above quoted, “ if there was no change in the possession of the property,” was calculated to mislead the jury, as they would understand that it was necessary that the property should have been removed to .protect plaintiffs’ rights. But the jury could have had no such understanding, taking the whole instruction together, as they are in plain language informed that the sale would be defeated by the property remaining in the actual possession of the attachment defendants. They could not have understood that a removal was necessary to transfer the possession.
II. The instruction is next objected to on the ground that if defendant had notice, after levy and before sale on execution,
III. The court directed the jury in effect that, if the property continued in the same building' where it had been kept
IV. The law conteinplates that there shall be a change of possession — something to indicate the fact of the purchase,
"V. Evidence was introduced against plaintiffs’objection, which tended to show fraud in the sales of the property. It is now insisted that the evidence was not relevant, and was therefore erroneously admitted. But the error, if any there be, was cured by the court instructing the jury that the question of fraud was not before them. ' ^
YI. It is insisted that a question asked of a witness assumes a fact; this may be so, but the fact was stated for no
VII. A witness was permitted to state that the defendants in attachment were in the possession of the building in which the
The foregoing discussion disposes of all the questions raised in the arguments of counsel. We find no error in the case.
AFFIRMED.