69 Iowa 328 | Iowa | 1886
The plaintiff is the wife of D. T. McAfee. The defendants are judgment creditors of the latter, and caused the' property to be levied upon under an execution in their favor. The plaintiff claims that the property belongs to her, and that at the time it was levied upon it was and had been in her possession for some years. This is denied by the defendants. There is no evidence, except that of the plaintiff' and her husband, as to the ownership and possession, except that of one witness introduced by the plaintiff. The carriage was purchased by D. T. McAfee at least ten years prior to the trial in the court below, and paid for by him, and 'given to the plaintiff at the time of the purchase. The other property was given to the plaintiff by her husband in 1878, in consideration that she would sign a mortgage. The plaintiff and her husbaud reside upon their homestead, and the carriage and sleigh were kept, when not in use, in a barn on the homestead premises, and the billiard table in the house and home occupied by them. The plaintiff testified that she owned the carriage, and that it was used by the family; that she permitted her husband to use it the same as any one else; and that she loaned it to him, but she did not remember that he had ever used it except when she was with him. She also testified that, when the sleigh and billiard table wmre given to her, she took possession of and used them. The evidence of the plaintiff’s husband, and that of the other witness, is substantially the same, and the question to be determined is whether the plaintiff or her husband was in the actual possession of the prdperty at the time of the levy, for it is not claimed that the defendants had actual notice, at the time of the levy, that the property belonged to or was in the possession of the plaintiff.
I. It is provided by statute that “ no sale or mortgage of
Counsel for the plaintiff cite and rely on Pierson v. Heisey, 19 Iowa, 114. In that case a father gave his daughter a piano, which was kept in the house occupied by the former, with whom the plaintiff, his daughter, lived. There was no pretense that “the father used the property as his own.” Besides this, the question before the court in that case was whether the court erred in refusing certain instructions asked which are^Set out.
If, as we have held, the plaintiff was not in the actual possession of the carriage, it necessarily follows that she was not in possession of the other property.
II. The defendants became the creditors of D. T. McAfee after lie gave the property to the plaintiff, and therefore it is claimed that he is not an existing creditor within the meaning of the statute. But in Fox v. Edwards, 38 Iowa, 215, it was held that the term “ existing creditors ” cannot be limited to those only who were creditors when the invalid sale was made. “ It continues to be invalid until the possession is changed, the instrument recorded, or notice given; and any creditors becoming such while the invalidity continues, are, as to that sale, existing creditors.”
As the plaintiff’s ownership of the property was not evidenced by a written instrument acknowledged and filed for record, as the statute requires, we are of the opinion that the court erred in rendering judgment for the plaintiff.
Beversed.