123 Iowa 714 | Iowa | 1904
Appellant rests her contention upon the provisions of section 2906 of the Code, which is as follows: “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 and acknowledged, like conveyances of real estate, and filed for record with the recorder of 'the county where the holder of the property resides.” The force of this provision of the statute is not denied by appellee, but it is his contention that the same cannot be given application to the case here made, in view of the fact that possession of the property was taken by him before notice, either actual or constructive, .of the mortgage held by appellant, and that at the time the latter obtained possession of the property she had actual notice of the prior mortgage. The propositions of fact thus, involved are controverted in the evidence, but we think it may be conceded for the purpose of the case that the record makes it appear that plaintiff did obtain possession of the piano on the evening of October 30th, and that the same was thereafter held by the person in charge of the premises as his bailee; also that when defendant obtained possession through an officer on Monday morning she had actual notice of the mortgage claim of plaintiff. Taking this to be the situation, the field of inquiry is narrowed down' to this: What effect is to be given to the failure of defendant to record her mortgage until after plaintiff had taken
It is argued on behalf of appellee that, inasmuch as he was a creditor of defendant Poff, and as he took possession before notice of the Holloway mortgage, the decree awarding to him a superior claim upon the property should be sus-' tained. We have no need to determine what would have been the effect had plaintiff, as a simple creditor of Mrs. Poff, invoked the process of the coxrrt, and procured the property
For the reasons pointed out, the decree of the trial court must be and it is reversed.