Johanson v. Rowland
| Decision Date | 23 October 1923 |
| Docket Number | No. 35450.,35450. |
| Citation | 195 N.W. 358,196 Iowa 724 |
| Parties | JOHANSON v. ROWLAND, SHERIFF, ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Johnson County; R. G. Popham, Judge.
Action in replevin of an automobile. The material facts are fully stated in the opinion. A jury was waived, and the cause tried to the court. Judgment for plaintiff. Defendants appeal. Affirmed.George B. Worthen, of Waterloo, and Henry G. Walker, of Iowa City, for appellants.
Dutcher & Hambrecht, of Iowa City, for appellee.
The case was tried upon a stipulation of the facts. Appellee is the owner of a Stephens touring car which he purchased on or about July 2, 1920, of the Ideal Motor Company of Waterloo, Iowa. The appellant Evan Rowland is the sheriff of Johnson county, Iowa, and the Leavitt & Johnson National Bank is the assignee of a note for $1,600, which appellee executed to the Motor Company in part payment of the purchase price of the touring car. Payments were made on the note from time to time, but, appellee failing to make all the payments required, action was brought against him, and judgment entered in the municipal court of the city of Waterloo for the balance due thereon. On October 28, 1921, Rowland, as sheriff, levied an execution upon the touring car, and this action was brought by appellee to recover possession thereof from the sheriff. The facts stipulated show that appellee used the automobile with which to earn a living, and it is conceded that, under our holding in Lames v. Armstrong, 162 Iowa, 327, 144 N. W. 1, 49 L. R. A. (N. S.) 691, Ann. Cas. 1916B, 511, and Waterhouse v. Johnson, 194 Iowa, 343, 189 N. W. 669, the automobile is exempt from execution to appellee as the head of a family, unless the claim of appellant bank is for the purchase price of the automobile.
The exception stated in section 4015 of the Code is as follows:
“None of the exemptions prescribed in this chapter shall be allowed against an execution issued for the purchase money of property claimed to be exempt, and on which such execution is levied.”
The question is whether the assignee of a note given for the purchase price of personal property stands in the same relation thereto as the seller; that is, is the property subject to execution to satisfy a judgment upon the note in favor of such assignee the same as it would have been if judgment had been entered thereon in favor of seller? The question is one of first impression in this state, and an examination of the few decisions in other jurisdictions bearing thereon reveals a distinct lack of harmony.
The Supreme Court of Minnesota, in Langevin v. Bloom, 69 Minn. 22, 71 N. W. 697, 65 Am. St. Rep. 546, and the Missouri Court of Appeals in Evans v. Orahood, 27 Mo. App. 496, sustain the contention of appellant that the property is subject to sale on execution upon a judgment rendered in favor of the assignee, the same as it would have been if it had been rendered in favor of the seller. A contrary doctrine is announced in Shepard v. Cross, 33 Mich. 96, and Weil v. Nevitt, 18 Colo. 10, 31 Pac. 487.
The holding of the Michigan and Colorado courts rests upon the theory that the assignee in such case is in no sense the seller, and that, when a note given for the purchase price of personal property is assigned to a third party, it ceases to represent purchase money, and becomes an obligation merely for the amount expressed on the face thereof, and nothing more, and that, therefore, the property is not subject to execution in favor of such assignee. The doctrine has been frequently announced that where money is borrowed upon a distinct understanding with the lender that it is...
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