145 Iowa 57 | Iowa | 1909
The cause was tried in the district court on the following agreed statement of facts:
Plaintiff delivered its typewriter to the International Bird Company, on condition that monthly payments be made, and that when such payments equaled price of machine typewriter to be property of Bird Company, title meantime to remain in plaintiff. Said typewriter was delivered to Bird Company under a written conditional sale contract, and said contract was not recorded, nor did the intervener or the defendants have notice, either actual or constructive, of any condition upon which the title to said typewriter should pass to Bird Company. The defendant Mahan by virtue of an attachment issued in his suit against the International Bird Company, levied on said typewriter without notice, actual or constructive, of the condition in the sale from plaintiff, and proceeded to sell the same on execution after judgment in his (Mahan’s) favor, and against the Bird Company, for a sum larger than the value of the typewriter. Before sale on May 18, 1904, plaintiff took said typewriter on a writ of replevin in this action and receipted to the constable for the same. Intervener was the landlord of the International Bird Company, and at the time of the intervention there was $210 due her as rent for the premises on which said typewriter ■was kept and used by the Bird Company. Said rent accrued while the typewriter was in the possession of said Bird Company. That the damage for detention of machine by plaintiff, if found not entitled to possession, shall be six percent interest on $99 from date of levy. Jury is waived by all parties.
[Replevin being a possessory action, we have no occasion to pass upon the questions of title which have been elaborately argued by counsel except so far as they may affect the right of possession of the typewriter at the inception of the controversy. Both the intervener and the defendants claim through or under the International Bird Company. The defendants obtained prior actual possession under a writ of attachment against such company, after ■which plaintiff intervened, asserting a superior right, and
At the very threshold of 'the case we have to meet the inquiry whether, conceding the existence of her landlord’s lien, it gives the intervener any right to the possession of the property which can be enforced in this proceeding. Intervener was not made a party to the attachment suit, and no judgment entered therein could have operated as an adjudication of her lien, if any she had; hence the rule applied by this court in Edwards v. Cottrell, 43 Iowa, 194, is not a precedent in point. She came into the action of her own motion, setting up a claim to the possession of the •property against both plaintiff and defendants. Her intervention was in effect a counter action in replevin, and can be maintained only on the theory that she might have maintained an independent action of that character. This we think she could not do. Her mere lien gave her no right to the possession of the property against either the tenant or any one claiming under or through the tenant.
In the instant case the agreed statement is that the rent claimed was due at the date of the intervention, which