Thе controversy is between attaching creditors and tbe bolder of an unrecorded chattel mortgage as to priority of tbe two liens. The trial court held, on stipulated facts, tbe lien of the attachment ivas paramount. Tbe mortgagee has appealed.
I. Plaintiffs, attacbing creditors, argue we do not have jurisdiction of tbe appeal because, it is said, tbe amount in controversy is less than $300 and no certificate of tbe trial judge was obtained. See rule 333, Rules of Civil Procedure. Basis for the argument is аn assertion therein, without support in the record, that tbe articles in controversy were appraised, pursuant to section 626.93, Code of 1958, at $180.
Rule 333 provides “tbe amount in controversy, as shown by the pleadings,” determines tbe right of appeal. See Geagley v.
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City of Bedford,
II. Plaintiffs sued defendant Kelso for damages for alleged breach of contract to dig a basement under plaintiffs’ dwelling. As grounds for attachment they alleged Kelso has absconded so the ordinary process cannot be served upon him and hаs removed permanently out of the county, has property therein not exempt from execution and refuses to pay or secure plaintiffs. (See section 639.3, subsections 6 and 7, Code of 1958.) Plaintiffs’ petition also stated defendant’s whereabouts is unknown to them.
On March 19, 19’57, the sheriff levied upon the articles in controversy, a television set, a refrigerator and a box of tools, under plaintiffs’ writ of attachment. On March 13, 1957, Kelso gave a chattel mortgage on these and other articles to intervenor, Peoplеs Finance Company, to secure it for a loan of $300. This instrument was not filed for record with the recorder of Warren County until April 18, 1957, after the levy under the attachment.
Kelso made no appearance to plaintiffs’ action and on May 2, 1957, they obtained judgmеnt in rem against him for $2000, confirming the attachment, ordering sale of the attached prop-, erty, providing that the rights of the finance company shall in nowise be affected by the judgment and continuing the issues raised by said intervenor. The judgment recites that defendant (Kelso) has left Iowa and that the allegations of plaintiffs’ petition are true.
Plaintiffs’ answer to the finance company’s petition of intervention admitted the making of its loan and the chattel mortgage, denied the priority of its lien thereunder and asserted the liеn *70 of the attachment was paramount because the mortgage was not timely filed and was not notice to plaintiffs.
The stipulation of facts consists mainly of the admitted allegations of the petition of intervention, the making of levy under the attachment аnd the judgment entry against Kelso. As stated at the outset the trial court held the lien of the attachment was paramount to that of the chattel mortgage.
III. The finance company argues that plaintiffs’ rights under the attachment can rise no higher than those of thе debtor in the attached property. This would be true if it were not for section 556.3, Code of 1958, which provides: “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” or a true copy thereof is filed with “the recorder of the county where the mortgagor or vendor resides * *
The rule applicable here is that an attaching crеditor can acquire no greater right in personal .property attached than the mortgagor-owner holds at the time of the attachment, except under the recording act, where such act applies. National Bank of Milton v. O’Brien,
A creditor who secures a lien on personalty by attachment or execution is an existing creditor within the meaning of section 556.3 and is entitled to priority over the holder of an unrecorded mortgage of which he has no knowledge or notice if the mortgagor retains аctual possession of the property. The creditor’s right attaches at the time of the levy. Bacon & Co. v. Thompson,
The decisions appellant cites on this branch of the case are not in point. In re Estate of Lewis,
Appellant calls attention to the language of Code section 639.38, “The plaintiff shall, from the time such property is tаken possession of by the officer, have a lien on the interest of the defendaoit therein, * * (Emphasis added.) This follows the provision in 639.37 for the levy of an attachment on property owned jointly, in common or in partnership with another. The words “such property” in 639.38 obviously refer to the kind of propеrty 639.37 describes. Section 639.38 has no application to the property in controversy here.
IV. Appellant contends plaintiffs are not entitled to the benefit of section 556.3 because, it is said, defendant did not retain actual possession of the artiсles levied on at the time of the levy. Several of our precedents support this claim of appellant and we think it must be sustained.
As explained in Division II hereof, plaintiffs’ petition alleged, as grounds for the attachment, that defendant had absconded so process could not be served upon him, had removed permanently out of the county and his whereabouts was unknown. The trial court found these allegations were true and on the strength thereof confirmed the attachment.
Section 556.3, the material part of which is quoted in Division III, by its terms applies only where the mortgagor retains “actual possession” of the mortgaged property. This means a true, real, genuine, positive and certain possession, not one which is theoretical or constructive only. Thе mortgagor is in actual possession when he retains the property under his immediate personal supervision and control. King v. Wallace Bros.,
We think it appears here that defendant did not have actual possession of the property in controversy at the time of the attachment. Certainly such possession does not affirmatively appear. It is pertinent to observe in this connection that one, like
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these plaintiffs, who claims the protection of section 556.3 as an existing creditor without notiсe has the burden to allege and prove such status as brings him within the favor of the statute. Loranz & Co. v. Smith, supra,
As early as Blake v. Graves,
As previously indicated, plaintiffs acquired the status of existing creditors when the levy was made under the attachment.
Dysart Savings Bank v. Weinstein, supra,
In National Bank of Milton v. O’Brien, supra,
In Lalley v. Sprague,
We see no important distinction between the eases cited and the present one. In the one last-cited the debtor-owner retained actual possession of the property for more than a month after its oral transfer to plaintiff, but, because such possession did not continue to the time of the creditor’s levy, it was held the recording act did not apply. Here the debtor-owner’s actual possession after the mortgage was given was for a much shorter period than in the cited precedent and had terminated prior to the levy under the attachment. We find no decisions contrary to these and plaintiffs have made no аttempt to meet appellant’s argument on this point.
Young v. Evans,
Other precedents may have some apрlication, by analogy, upon the question now considered. We have said defective description in a chattel mortgage may be cured by subsequent delivery of the property to the mortgagee, as against persons who have not acquired a right or interest before such delivery, thus
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emphasizing the importance of possession at the time a right is sought to be acquired under the recording act. Kelley, Maus & Co. v. Andrews,
We have also said that where possession is not changed at the time of a sale or mortgage but the purchaser or mortgagee takes possession before the levy of an attachment, his right is prior to that of the attaching creditor. Dysart Savings Bank v. Weinstein, supra,
V. We may observe, as previously indicated, that at least since our decision in Loranz
&
Co. v. Smith, supra,
Plaintiffs failed to meet this burden both in pleading and proof. Although the errors assigned by appellant are broad enough to include this point it is not argued. Consequently the result herein reached is not based upon plaintiffs’ failure to plead and prove lack of notice of appellant’s mortgage.
Upon the considerations explained in Division IY the judgment entry of November 20, 1957, is reversed and remanded for judgment in accordance herewith. Appellant’s motion to strike the part of plaintiffs’ brief and argument referred to in Division. I is overruled. — Reversed and remanded.