55 Iowa 478 | Iowa | 1881
The plaintiffs assign as error the giving of the following instructions at the request of defendants:
“ 10. It is also provided by the laws of the State that any sale or transfer of personal property, where the vendor retains actual possession thereof, is invalid and utterly void as against existing creditors without notice, unless a written instrument conveying the same is executed and acknowledged like conveyances of real estate, and filed for record in the county where the holder of the property resides. The object of this statute is to enable creditors or purchasers to ascertain, from the records of the county in which the debtor resides, what interest any party other than the debtor in possession has in such property. But it does not follow that such instruments so acknowledged and recorded are necessarily valid as to creditors; and the fact that the debtor remains in possession and use of the property as his own, even though conveyed by him by bill of sale duly acknowledged and recorded, is a badge of fraud, which it is proper for yoxi to consider in determining upon the validity of such conveyance.
“11. You are further instructed that any conveyance by a debtor of his property under which the debtor is permitted by the vendee, by an understanding, either expressed or implied, to remain in the continuous use and enjoyment of the*481 property conveyed, or a considerable part thereof, using and enjoying the same as before said conveyance, is fraudulent as to creditors, even though there be a good and valid consideration for such conveyance, and even though said conveyance be duly acknowledged and recorded.
“ 12. You are further instructed that any sale of property under which the vendor, by understanding, either express or implied, is permitted by the yendee to remain in possession of the property and exercise acts of control and ownership over it, and to use and dispose of, or convert to his own use, the same, or a part thereof, is void as against creditors, even though there be a valid consideration therefor, whether such sale or conveyance be duly acknowledged and recorded or not.
“15. The alleged title of the plaintiffs in this suit to the possession of the property in controversy is claimed by them to have been derived from H. C. Jordan, except as to the scales described in the petition, but if you find that the actual possession of the property, notwithstanding the said conveyance to IT. C. Jordan, was allowed to remain in the vendor, B. P. Jordan, and that he continued in the control, use and enjoyment of said property, and that he was permitted to convert the same, or a part thereof, to his own use, by virtue of an understanding to that effect, express or implied, and that the plaintiffs in this suit, Ida and Hattie Jordan, were at home upon the farm of their father, and knew of his possession and use of said property, then they did not, by said alleged purchase from H. C. Jordan, even if made as alleged, acquire any title to said property, and they cannot recover in this suit, and you should find for the defendant.”
The defendants cite numerous authorities holding that the retention by the vendor, of the possession and use of personal property sold, is either per se fraudulent, or a badge of fraud, as to creditors of the vendor. See Coburn v. Pickering, 3 N. H., 423; Paul v. Crooker, 8 Id., 288; Coolidge v. Melvin, 42 Id., 510; Lang v. Stuckwell, 55 Id., 581; Hundley v. Webb, 3 J. J. Marsh., 651; Rice v. Cunningham, 116 Mass.,
The plaintiffs insist, however, that whatever may be the rule of the common law, this doctrine is not applicable under the provisions of sections 1923 and 1925 of the Code. These sections are as follows:
■ “1923. No sale or mortgage of personal property, where the vendor or mortgagor retains actual possession thereof, is valid against existing creditors or subsequent purchasers without notice, unless a written instrument conveying the same is executed, acknowledged like conveyances of real estate and filed for record with the recorder of the county where the holder of the property resides.
“ 1925. Whenever any written instrument of the character above contemplated is filed for record as aforesaid, the recorder shall note thereon the day and hour of filing the same, and forthwith enter in his entry book all the particulars required in the preceding section, except the sixth, and from the time of said entry the sale or mortgage shall be deemed complete as to third persons, and have the same effect as though it had been accompanied by the actual delivery of the property sold or mortgaged.”
A sale of personal property where possession is delivered to the vendee is unquestionably valid. But section 1925 of the Code provides that when a written instrument conveying the property is executed, acknowledged and filed for record as required, the sale shall have the same effect as though it had been accompanied by the actual delivery of the property sold. The retention of possession by the vendor is specifically authorized and provided for by these sections. Possession retailed in the manner provided in these sections is strictly lawful, and cannot, therefore, be regarded as fraudulent or a badge of fraud. In addition to retaining possession, may the vendor use and exercise control over the property as his own? It could not have been the purpose of these sections to simply authorize the vendor to retain the naked possession of the
“ 17. With respect to the scales in controversy, you are instructed that if B. P. Jordan purchased the scales and had them placed and set for use upon his premises, and they continued upon the premises in his possession up to the time they were levied on, then any arrangement, understanding or agreement between B. P. Jordan and his daughters at the time of the maturity of the purchase price of the scales, by which, if they paid a certain sum of money, they were to become the owners thereof, would be null and void as to attaching creditors not having notice of such agreement or understanding*484 as to the transfer of title to the plaintiffs, Ida and Hattie Jordan.”
The instruction, as applied to the facts, is correct. Scales set up for use on B. P. Jordan’s farm must, as to third persons, be regarded as in his possession.
For the giving of the instructions considered in the first branch of this opinion, the judgment is
Reversed.