Case & Co. v. Woleben

52 Iowa 389 | Iowa | 1879

Adams, J.

1. mortgage: [nS'beíore i:.sue joined. — It is claimed by the appellees that at the time Thomas Welsh and William Welsh, jr., executed the mortgage to ^ie plaintiffs there had been an adjudication ag'a>Hst the mortgagors and in favor of Woleben w]iereby it was adjudged that the right of possession was in him. The adjudication relied upon is the order of return. The appellees cite Marshall v. Bunker, 40 Iowa, 121. The most that could be claimed for that case-is that where issue involving the right of property is joined in an action of replevin, and the plaintiff dismisses his action, the defendant is entitled to judgment. In the replevin actions in question there was not only no issue of any kind joined, but no judgment rendered except for costs.

By the order"it was determined that under the circumstances the constable appeared at that time to be entitled to the horses. But they were allowed to remain in the possession of the intervenors, and while in their possession they were mortgaged by the intervenors to the plaintiffs. In our opinion, the mortgage is not subject to any right acquired by the constable.

. Reversed.