68 Iowa 238 | Iowa | 1885
On the thirtieth day of December, 1881, the defendant, Sabelowitz, executed two chattel mortgages, each of which covered the entire stock of goods and merchandise in the building occupied and used by him as a store. One of said mortgages was executed to Joseph Hershburg, and was given to secure an indebtedness of $850. The other
Counsel for appellant contends, however, that, while the interest of the mortgagor in the property cannot be levied on and sold on execution, it yet may be seized on attachment, and that it is the duty of the officer serving the writ to levy on such property, if none can be found belonging to the debtor which is unincumbered. He insists that section 2964 of the Code imposes this duty on the officer. The section is as follows: “The sheriff shall, in all cases, attach the amount of property directed, * * * giving that in which the defendant has a legal and unquestionable title a preference over that in which his title is doubtful, or only equitable.” But, in our opinion, this section should be regarded as defining the duty of the officer as to the order in which property should be seized upon the writ, rather than as creating a rule as to the interest of the debtor which may be levied on under it. The writ commands the officer to seize an amount of property belonging to the defendant sufficient to satisfy the debt, and the section of the statute directs him as to the manner in which he is to perform the duty imposed upon him. In executing the writ, he is required to seize property in which the defendant has an unquestionable title before resorting to that in which his title is doubtful, or only equitable. He is empowered by the writ to levy upon any property in which the defendant has
Affirmed.