Kuhn v. Graves

| Iowa | Oct 13, 1859

Stockton, J.

Replevin for personal property. The plaintiffs make title under a bill of sale and conveyance from Zachariah Emmish, regularly acknowledged, certified and recorded. The defendant was a constable, and claimed the property by virtue of a levy and seizure under a writ of attachment issued by Ellis Parker, a justice of the peace of Hardin county, at the suit of Gf. M. Woodbury, against Z. Emmish & Brothers. He avers in his answer that he took the property from the possession and control of Z. Emmish & Bros, as their property, and denies that the plaintiffs owned the same, or any part thereof. Replication and issue joined.

The plaintiffs gave in evidence, the bill of sale from Z. Emmish, and a power of attorney from themselves to Emmish, to sell and dispose of the property. This being all the evidence, they asked the court to instruct the jury that, “ if the bill of sale was executed, acknowledged, and recorded before tbe levy of tbe writ of attachment, defendant was 'bound to take notice of tbe same; and in tbe absence of fraud between tbe plaintiffs and Emmish, tbe jury will find for tbe plaintiffs.” This instruction tbe court refused to give; and refused to charge tbe jury that, “ unless they were convinced of tbe existence of fraud in tbe transaction, and that the plaintiffs participated therein, they must find for tbe plaintiffs;” but gave tbe last instruction, with this qualification : “ Provided tbe jury find that tbe bill of sale contained a stipulation that the property was left in tbe possession of tbe seller, Emmish.”

At tbe request of tbe defendant tbe court instructed tbe jury: “ That a bill of sale of personal property under which tbe actual possession is not taken by tbe purchaser, but is retained by the seller, will not pass tbe property of tbe seller so as to cut off attaching creditors, though acknowledged and recorded, unless the instrument provides for tbe property remaining in tbe possession of the seller. There being no such provision in this case, tbe plaintiffs were entitled to the possession of tbe goods, and tbe recording of tbe bill of sale is not such notice of their ownership, if found in tbe possession of Emmish, as will cut off tbe rights of attachment or judgment creditors. If tbe jury are satisfied from tbe evidence that no other notice than that contained in tbe record was given to defendant, they will find for defendant.”

“A bill of sale of personal property executed and recorded which does not provide that the property shall remain in the possession of tbe grantor, is not notice that tbe property, after that time found in bis possession, is not bis property; but be is presumed to be tbe owner of all personal property in bis possession.”

Under these instructions tbe jury found a verdict for tbe defendant, and a judgment was rendered in bis favor for a return of tbe property replevied.

Tbe instructions asked by tbe plaintiffs should have been given. Tbe goods were bound only from the service of tbe writ, and if tbe bill of sale to tbe plaintiffs was executed, acknowledged and filed for record before tbe levy by defend-’ ant, he was bound to take notice of the same, and of tbe title wbieb passed by it to tbe plaintiffs. Tbe qualification added by tbe court to tbe instructions asked by the plaintiffs, •as well as tbe instructions given by tbe court at tbe request of tbe defendant, wras erroneous. Tbe vendor of personal property may retain possession thereof, where there is a written instrument convoying tbe property, executed, acknowledged and filed for record. Otherwise tbe sale or mortgage of personal property, where tbe vendor or mortgagor retains actual possession, is not valid against existing creditors or subsequent purchasers without notice. Code, section 1193; McGavran v. Haupt, ante. When filed for record, and duly noted by tbe recorder as required by section 1194, the ■bill of sale or mortgage is deemed complete as to third persons and is to have the same effect as though accompanied by the actual delivery of tbe property sold or mortgaged. Code section 1195.

Judgment reversed.