57 Iowa 262 | Iowa | 1881
The execution under which the defendant acted is in due form. The only question involved pertains to the sufficiency of the levy. The evidence is not contained in the abstract and the case must be determined upon the facts as found by the court.
The court submitted a finding of facts and of legal concia
That the actual possession of said out building was not at this time turned over to the said W. S. Johnson or the company of which he was a member, but he was in possession of the balance of the premises actually; that the patterns aforesaid were of the actual value of fifteen hundred dollars. That the aforpsaid facts constitute a legal and valid levy upon all the property mentioned in said return, including the patterns situated in said out building; that on the same day but after the levy aforesaid, the said Gilliam & Ogle executed and duly acknowledged the chattel mortgage set forth in the pleading to secure the debt therein named, which remains wholly unpaid, and that there is due thereon the amount set forth therein, as evidenced by the note described therein, to-wit: the sum of - dollars, and the court finds said mortgage was duly filed, indexed and recorded on the day after the date thereof, as shown by the mortgage, and that the mortgagors on that day wrote the plaintiffs of the execution thereof at Keokuk, where they resided, and the plaintiff's replied thereto on the next day, when it was received, accepting the mortgage, but that all this, including the execution and recording of the mortgage, occured after the aforesaid levy; that the defendant never was in said out buildings where the patterns were stored as aforesaid and never handled the same until the day of the sale, and on that day the building was opened and the property exposed to sale by the sheriff and sold by liim} but not disturbed or removed by him other than in causing the opening of the building for the purpose of examination and sale, and in selling the same.”
"While the patterns remained locked up in the building, and the key continued in the possession of the owner they were not subject to the actual control of the officei1, nor had he the power of removal. It is true the officer had the physical power to break open the building and assume control of the property. But in doing so he would of necessity materially change his situation respecting the property. Control and power of removal is a very different thing from the ability to assume control and the power of removal.
If the officer had been a mile away from the property, it could not be said that the property was under his control and subject to his power of removal, and yet he would have possessed the same physical power of putting himself in a condition to assume actual control and the power of removal as in the present case.
We feel that to hold a valid levy upon personal property may be made as was attempted in this case, would be adopt
Reversed.