Haller v. Parrott

• Decision Date: 29 January 1891
• Citation: 82 Iowa 42,47 N.W. 996
• Parties: HALLER v. PARROTT.
• Court: Iowa Supreme Court

82 Iowa 42

47 N.W. 996

HALLER

v.PARROTT.

Supreme Court of Iowa.

Jan. 29, 1891.

Appeal from district court, Ida county; J. H. MACOMBER, Judge.

Action at law to recover possession of 36 head of steers. Trial to the court. Judgment for plaintiff. Defendant appeals.Bradshaw & McGiffin, for appellant.

J. S. Lothrop and J. C. Walter, for appellee.

GIVEN, J.

1. The facts material to a determination of the question submitted are as follows: December 26, 1885, A. G. Bagley, then of Fremont county, Iowa, executed a chattel mortgage to Chapin & Irish to secure $1,309.44 on property described as follows: “Thirty-six (36) steers branded on right hip with inverted letter ‘U,’ three steers branded on the right hip with a half circle facing downwards thus,>.A majority of above-described cattle are three years old past, and the remainder two years old past.” The mortgage further recites that it “is given to secure the purchase money of the stock described above, and said steers are to be kept upon full feed of corn until the note secured hereby is paid in full. Said cattle to be kept upon the west half of the N. W. quarter of section 2, Twp. 87, range 42, Morgan Twp., Woodbury Co., Iowa.” This mortgage was filed for record in Woodbury county, December 26, 1885, and in Fremont county, August 19, 1886. About August 1, 1886, the plaintiff became the owner of this mortgage and the notes secured thereby. On July 24, 1886, the defendant, as sheriff of Ida county, levied upon and took possession of the steers in question, under a writ of attachment issued by the clerk of the court of Ida county at the suit of the Iowa Barb Steel Wire Co. vs. A. G. Bagley, as the property of said Bagley. That said action was transferred to the district court in and for Fremont county because of the residence of Bagley being in that county. On January 29, 1887, judgment was rendered in that action in favor of plaintiff and against the defendant, Bagley, and an order for “special execution against the attached property herein, to-wit, 36 head of 2 and 3 year old steers.” Bagley was asked upon his examination: “State where you resided during the years 1885 and 1886, and what business you were then engaged in.” He answered: “I resided at Tabor, Fremont county, Iowa, and was engaged in general mercantile and farm implement business, until July 17, 1886.” We do not understand, from this question and answer, the witness to state that he ceased to reside at Tabor July 17, 1886, but that he then ceased to do business at that place. On August 10th following the levy, the plaintiff gave notice to the defendant of his claim to the property levied upon.

2. Appellant contends that, as defendant had no actual notice of the mortgage, and it was not filed for record in Fremont county, where the mortgagor resided at the time of the levy, it is not valid as against defendant, and should not have been admitted in evidence over his objection. The defendant did not have actual notice of the mortgage at the time of the levy, nor had he constructive notice, for at that time the mortgage had not been filed for record in Fremont county, where Bagley, the holder of the property, resided, as required by section 1923 of the Code. See Stewart v. Smith, 60 Iowa, 275, 14 N. W. Rep. 310, and King v. Wallace, 78 Iowa, 221, 42 N. W. Rep. 776. Defendant did have actual notice of plaintiff's claim to the property August 10, 1886, and before any other proceedings were had with respect to the property than the levy. That the mortgage...