63 Iowa 287 | Iowa | 1884
The only evidence which it is claimed had any tendency to prove that either defendant or the plaintiff in execution had notice of plaintiff’s purchase, before the levy, was the testimony of Pichel, who swore that he told defendant on the day of the levy that he had no interest in the property. The court, after telling the jury that, if-the property remained in Pickel’s possession and under his control after the contract, the sale to plaintiff would not be valid as against the creditors of Pichel who had no notice of the sale, but that, if defendant, or the plaintiff in execution, had actual notice of the sale to plaintiff at the time the levy was made, or prior to that time, they acquired no interest in the property as against plaintiff, gave this instruction: “Put on the question of notice, the burden of proof is on plaintiff to establish the same by a preponderance of evidence.” The plaintiff assigns the giving of this instruction as error.
The position of counsel is that, when plaintiff had proved a sale of the property by Pichel to him, which was good as between them, the burden was on the defendant, Avho was disputing his right, to establish such facts as would defeat it.
The satisfactory answer to this claim, however, is, that plaintiff is asserting a right to the property as against the defendant, and the burden is on him to establish his right. To entitle him to recover as against defendant, he must prove that his right to the property is superior to that claimed by defendant. His right to the property as against Pichel is dependent on the single fact of the sale by Pichel to him; but as against a creditor of Pichel, who has caused it to be seized on process against Pichel, it is dependant on tAvo facts, viz., the sale by Pichel to him, and notice of that fact to the creditor before the seizure; and it is manifest that he is not en
It then gave the following instruction: “ But a simple disclaimer, at the time of the levy, by Pickel, the execution debtor, of having any interest in the property, would in itself not have been sufficient to put the defendant on inquiry, or to justify him in postponing the levy and incurring the risk of having the execution debtor dispose of the property, or otherwise place it beyond defendant’s reach.”
Plaintiff assigns the giving of this instruction as error. The objection urged against the instruction is, that the disclaimer by Pickel tliat lie had any interest in the property was equivalent to a declaration that it belonged to some other party, and it should have been left to the jury to say whether this was sufficient to put defendant on inquiry as to whom it belonged to. ■
We think the instruction is correct. While in a certain sense defendant was the agent of the plaintiff in execution, his duties with reference to the levy are clearly defined by statute. Section 3055 of the Code provides that “an officer is bound to levy an execution on any personal property in the possession of, or that lie has reason to believe belongs to, the defendant, or on which the plaintiff directs him to levy, unless he lias received notice in writing from some other person, his agent or attorney, that such property belongs to him.”.
Now, it may be true, if the officer, when he is about to make the levy, is informed that the property which he is about to seize belongs to another than the defendant, that the plaintiff in execution would be affected by this notice; and we do
Aeeeirmed.