46 Iowa 517 | Iowa | 1877
Construiug this section in Boothby & Co. v. Brown, 40 Iowa, 104 (106), it is said: “The law contemplates that there shall be a change of possession, something to indicate the fact of the purchase, the change of ownership of the property by the claimant. If, therefore, the property be left with the seller, whose relations to it continue unchanged, so far as the world may know by the acts of the parties, the possession will be regarded as continuing in him. The absence of acts of control or ownership, on the part of the seller, will not be evidence that the actual possession was transferred to the purchaser.” See, also, Hesser & Hale v. Wilson, 36 Iowa, 152.
. In this case the jury might well find from the testimony that the property was left with the seller, and that his relations to it continued unchanged, so far as the world could know from the acts of the parties. The verdict, we think, therefore, is not without support in the testimony.
III. Appellant complains of the refusal of the court to" give the following instructions:
“If you find there was a counting out, separating and setting apart the twenty-four head of cattle for the purpose of completing the sale at aixy time prior to the execution of the mortgage of C. ~W. Cowles by one John O’Hara; that said John O’Hara did all and every act he could do to pass title and possession of said property by declaring he would not be responsible for them, together with other acts; and you find further that plaintiff never did re-deliver to O’Hara said property; or, in other woi’ds, there remained no act for the said John O’Hara to do to pass title, then you must find for plaintiff.”
Under the evidence these instructions were properly refused. However sufficient these facts might be'as between the parties to pass the title, they are not sufficient under section 1923 of the Code, so long as the vendor was allowed to l’etain the actual possession.
IV. Appellant lastly claims that the description of the property in the mortgage is so indefinite that defendant cannot recover the property from plaintiff. This point does not seem to have been presented in the court below, and it cannot be made for the first time here. The mortgage, however, describes the property as three year old, two year old, and one year old steers, “ being all the stock of the description above named owned by me.” This last description furnishes a means of identifying the property. The record discloses no error.
Afeiemed.