Barr v. Cannon
| Decision Date | 09 June 1886 |
| Parties | BARR, SHERIFF, v. CANNON & GUNN |
| Court | Iowa Supreme Court |
Appeal from Mahaska District Court.
ACTION to recover the value of certain corn levied upon by plaintiff as sheriff, which was taken by defendants, and converted to their own use. There was a judgment upon a verdict for plaintiff. Defendants appeal.
AFFIRMED.
Bolton & McCoy, for appellants.
Robert Kissick and George W. Lafferty, for appellee.
I. The defendants in their answer to the petition allege that they were owners of the corn in controversy, and in possession of it under a chattel mortgage, of which plaintiff had full notice, and deny that plaintiff made a levy upon the corn. The district court correctly held that the defendant's mortgage was invalid, upon the ground that it does not sufficiently describe the property intended to be conveyed; the description being "all the grain, oats wheat, flax and corn raised" on certain land. The mortgage fails to state the year or time in which it was to be raised. A similar instrument, wherein the description of the property conveyed was identical with the description in the conveyance involved in this case, was held by this court invalid. The description is not sufficient to raise inquiry which could lead to the identification or discovery of the property intended to be conveyed. The instrument is therefore void for uncertainty. The rulings of the district court to this effect must be sustained. Eggert v. White, 59 Iowa 464, 13 N.W. 426; Pennington v. Jones, 57 Iowa 37.
II. It is urged by counsel that the sheriff's levy was not sufficient to bind the property, for the reason that the officer did not take actual possession of the property. The corn levied upon was in the field, ungathered. Prior to the levy the sheriff notified the defendants in this case of his purpose to levy on the corn, and just before or at the time of the levy he notified the defendant in execution that he was about to make the levy. He went into the field for that purpose. It appears that he did all that could have been done in order to take possession of the property and to notify persons interested of the fact that he had made the levy. It is not usual for owners of corn-fields to keep a watch and guard over them. They retain possession without such precautions. The sheriff having taken possession of the corn would retain it by pursuing such course as owners of property usually take to retain possession.
III. Counsel for defendants insist that the possession of the property, at the time of the levy, was held by defendants. They claim that the execution defendant was in possession as the agent of defendants. The facts relied upon to support this claim are that there was a contract between defendants and the execution defendant that the latter should gather the corn for the former, and that he had gathered a small part of it. But the transfer of the corn to defendants as the mortgage was not valid, in the absence of the...
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