Dysart Savings Bank v. Weinstein

• Decision Date: 05 July 1911
• Citation: 132 N.W. 18,152 Iowa 260
• Parties: DYSART SAVINGS BANK, Appellee, v. PHILIP WEINSTEIN and DAN LALLY, Intervener, Appellants
• Court: Iowa Supreme Court

132 N.W. 18

152 Iowa 260

DYSART SAVINGS BANK, Appellee, v. PHILIP WEINSTEIN and DAN LALLY, Intervener, Appellants

Supreme Court of Iowa, Des Moines

July 5, 1911

Appeal from Tama District Court.--HON. C. B. BRADSHAW, Judge.

Reversed.

Struble & Stiger, for appellants.

Thomas & Thomas, for appellee.

OPINION

THE opinion states the case. Judgment reversed, and cause remanded.

WEAVER J.

The defendant, Weinstein, became indebted to the plaintiff bank and absconded. Thereafter said plaintiff sued out an attachment for the collection of its claim, and caused the same to be levied on a large mass of scrap iron lying upon the railroad right of way in the town of Dysart on the theory that said iron was the property of Weinstein, and subject to levy at the suit of his creditors. Soon after said levy, Dan Lally intervened in the attachment proceeding, claiming to be the owner of the iron from a date prior to the levy of the writ, and asking that said levy be discharged. In explanation of his claim of ownership Lally alleged that prior to said levy and prior to the beginning of the attachment suit Weinstein pledged said iron to the First National Bank of Dysart to secure the payment of an indebtedness to said bank, and, having defaulted in said payment, the bank proceeded, as it lawfully might, to sell the said pledged property, and did, in fact, sell the same to said intervener, in evidence of which transaction said bank then and there made and delivered to the intervener a bill of sale of said iron. The instrument thus pleaded was executed and acknowledged on June 8, 1909, five days before the filing of the petition in the attachment case. To this intervention the plaintiff appeared and answered in denial. The issue was tried to the court, which found that there having been no change in the possession of the iron as required bye Code section 2906, the intervener's claim must be held subject to the lien of the attachment and dismissed the petition of intervention. The correctness of this holding is the single question for our consideration.

It appears to us that the trial court erred in the assumption that the iron was in the possession, actual or apparent, of the defendant, Weinstein, at the time of the attachment. According to plaintiff's own showing, the iron was piled upon the railroad right of way and Weinstein had absconded. The statute upon which the court based its finding provides that "no sale or mortgage of personal property where the vendor or mortgagor retains actual possession thereof is valid against existing creditors without notice," etc. Code, section 2906. The record does not disclose "actual possession" in Weinstein. He had, as we have seen absconded. The iron was upon the premises of a third party. More than nine months prior to that date he had in writing pledged the iron to the First National Bank, and in the same writing provided that, until his debt to said bank was paid, all future sales and shipments therefrom should be made in the name of the bank's president. Oscar Casey, and the record shows that all subsequent shipments were in fact so made, though Weinstein added to the pile from time to time. The "actual possession" to which the statute refers is real possession, that which is true, positive, and certain, and not that which is theoretical or constructive only. King v. Wallace, 78 Iowa 221, 42 N.W. 776.

Again delivery or change of possession does not necessarily mean that the property shall be moved from the place or situs in which it exists at the time when it is sold, mortgaged, or pledged. The change in possession, especially where the property is being kept or stored upon premises which are not in the possession or control of the seller or mortgagor, may be such only as is reasonably practicable, considering the nature and character of the thing sold or mortgaged. Pope v. Cheney, 68 Iowa 563, 27 N.W. 754; Stewart v. Smith, 60 Iowa 275, 14 N.W. 310; Thomas v. Hillhouse, 17 Iowa 67. The subject-matter of the transaction in this case was seventy-five tons of scrap iron lying in a heap upon the premises of the railroad company. It was manifestly incapable of delivery in the ordinary sense of passing it from hand to hand and any act which amounted to a symbolical delivery or surrender of the control of the property to the purchaser or pledgee was sufficient. As we have seen, Weinstein did surrender control of...