68 Iowa 460 | Iowa | 1886
The property in controversy consists of corn in cribs, and the plain tiff seeks to recover the same on the ground that the corn had been orally pledged or mortgaged to them by Grant & Johnson. It is stated in the petition that the corn was in the actual possession of one Mason, for the use and benefit of the plaintiff, on the twenty-sixth day of June, when the same was attached by David Dows & Co. as the property of Grant
The demurrer seems to be grounded on the thought that the facts stated in the answer do not create an estoppel, and therefore the defense pleaded is insufficient. We think it is immaterial what name or designation the pleader may have used, for the only material point is, do the facts pleaded constitute a defense to this action? It is essential to the existence of a parol pledge or mortgage of personal jwoperty that the pledgee or mortgagee should have possession. Such a pledge is invalid unless accompanied with the possession of the property; and the moment the pledgee voluntarily parts with such possession, or claims the right to detain the ■ goods upon a different ground, the right to a lien is lost. 3 Pars. Oont., 244, 245; Story, Ag., § 367.
In this case the plaintiff had possession of the corn by its agent, and it was entitled to a lien thereon, and therefor it
We think the court erred in sustaining the demurrer to the eighth count in the answer.
Reversed.