Kern v. Wilson

• Citation: 35 N.W. 594,73 Iowa 490
• Parties: KERN AND ANOTHER v. WILSON.
• Decision Date: 16 December 1887
• Court: United States State Supreme Court of Iowa

73 Iowa 490

35 N.W. 594

KERN AND ANOTHER

v.WILSON.

Supreme Court of Iowa.

December 16, 1887.

Appeal from district court, Wright county; S. M. WEAVER, Judge.

Action by J. B. Kern & Son against H. G. Wilson, to recover specific personal property which the defendant, as sheriff, had taken possession of by virtue of a certain writ of attachment against J. C. Dwyer. Trial by jury. Verdict and judgment for the plaintiffs. The defendant appeals.E. C. Walsh and Nagle & Birdsall, for appellant.

R. H. Whipple and Cook & Tilkins, for appellees.

SEEVERS, J.

1. It is stated in the petition that the “plaintiffs are the absolute and unqualified owners of a stock of drugs, late in the possession of J. C. Dwyer, in a certain store building * * * in Dows, Iowa; that they acquired said ownership by purchase; that defendant wrongfully detains possession of the same.” The plaintiffs offered to introduce in evidence a chattel mortgage executed by Dwyer to them upon the goods in controversy, as they claimed. To this the defendant objected, upon several grounds, which were overruled. The defendant asked the court to instruct the jury that the “plaintiffs allege that they are the absolute and unqualified owners of the property in controversy in this case. The only evidence of such ownership introduced by them being a chattel mortgage, you are instructed that plaintiffs have failed to establish their ownership of the property in controversy, and your verdict must be for the defendant.” This instruction was refused. It is provided by statute, in actions of this character, that “the facts constituting the plaintiff's right to the present possession, [of the property,] and the extent of his interest in the property, whether it be full or qualified ownership,” must be stated in the petition. Code, § 3225, subsec. 3. This action was commenced in May, 1886, and the mortgage was given to secure the payment of two promissory notes; one of which became due in August, 1886, and the other in August, 1887. There are authorities which hold that, after default in the payment of the money secured by a chattel mortgage, the title to the mortgaged property becomes absolute in the mortgagee; but prior to that time, at least in this state, the mortgagee is not the unqualified and absolute owner of such property. The right of redemption certainly exists. Hubbard v. Insurance Co., 33 Iowa, 325;Goldsmith v. Willson, 67 Iowa, 667, 25 N. W. Rep. 870;Evans v. Harvester Works, 63 Iowa, 204, 18 N. W. Rep. 881. The plaintiffs, however, under the provisions of the mortgage, were, at the time the action was commenced, entitled to the possession of the mortgaged property. Code, § 1927. This right, however, is much less than absolute ownership. The provision of the statute requiring the plaintiff to state the nature and extent of his interest means something; and it follows, when it is pleaded, that the plaintiffs' right to the possession of the property is because they were the absolute and unqualified owners thereof, and they must establish on the trial such ownership. The object of the statute was to advise the defendant of the nature of the plaintiffs' claim to the property, to the end that he could intelligently defend. The rule is that the proof must sustain the material allegations of the petition. Woolsey v. Williams, 34 Iowa, 413;Edgerly v. Insurance Co., 43 Iowa, 587. The court therefore erred in admitting the mortgage in evidence, and also in refusing the instruction above set out.

2. As the plaintiff may see proper to amend the petition, it is deemed necessary to determine certain other questions which may arise on another trial. The mortgage states that “I, J. C. Dwyer, * * * in consideration of * * *, to me in hand paid by J. B. Kern & Son, * * * party of the second part; * * * said mortgage covers all of said stock, and additions to the same that may be made from time to time by second party.” It became a material question on the trial whether this mortgage covered...