85 Iowa 424 | Iowa | 1892
The property in controversy is a cornsheller. One Kirchoff is a judgment debtor to J. Thompson & Sons. The defendant, as sheriff, by virtue of an execution levied upon the cornsheller as the property of Kirchoff. The plaintiff claims that he purchased the sheller from Kirchoff before the seizure by the defendant,'and that he still owns the same. The answer denies the ownership by the plaintiff; avers that the “pretended purchase’’ was for the purpose of aiding Kirchoff to defraud his creditors, J. Thompson & Sons; that there was no delivery of the sheller to the plaintiff; and that no written instrument conveying the same was recorded, “as provided by law.” At the close of the testimony the court, on its own motion, directed a verdict for the plaintiff. ’Of this action by the court complaint is made.
The transaction between Kirchoff and the plaintiff •occurred on the twenty-fourth of January, 1889. A bill of sale of the sheller was at the time executed, and, without being “acknowledged, like conveyances •of real estate,” was filed for record and recorded in Delaware county. The plaintiff resides in Delaware county, and Kirchoff in Dubuque county. If the .sheller remained in the possession of Kirchoff, the record of the bill of sale would not impart notice so as to protect the plaintiff, for it was not acknowledged as required by law; nor was it. recorded in Dubuque-county, where the holder of the property resided. See Code, section 1923.
If, then, the state of'the evidence is such that the jury should have been permitted to determine the question of the actual possession, the' court erred in taking the case from the jury. Some undisputed facts will aid us to a proper conclusion. Kirchoff’s home is in Dyersville, and that of the plaintiff about two miles from there. The plaintiff had, on a lot owned by one Potts, in Dyersville, a shed. Kirchoff bought the