86 Iowa 231 | Iowa | 1892
The two Hines were brothers, and, according to the testimony of M. Hines, John had worked for him “off and on” for six or seven years, and had worked for him while at What Cheer, drilling the well in question. After the bill of sale was executed, M. Hines left the- same day, or the next, for Belle Plaine. Before the sale, M. Hines had been to Franklin (or Frankfort), Dakota, and engaged work there in drilling. The testimony shows, or tends to show, that he was trying to engage help to go there, including his
The thought of the intervenor seems to be that the effect of the instruction goes only to the applicability of section 1923 of the Code to the case, wherein it is provided that “no sale * * * of personal property, where the vendor * * * retains actual possession thereof, is valid against existing creditors or subsequent purchasers,” unless the instrument is properly filed for record, etc.; and that the instructibn has reference to the commencement of the last suit, the one under which the first levy was made being dismissed. It will be seen from our discussion that we think that the instruction has a. different application. If it had reference to the last levy, it would be equally erroneous, as a matter of fact, and leave the jury to determine the case from false premises. But such is not the case. The issue was as to the bona fides of the sale, and it was the possession when the sheriff made his seizure that is material, and to which the instruction should have been thought to apply. There are no other questions oiTthe plaintiff’s appeal, likely to arise on another trial, which we think it