Lufkin v. Preston
| Citation | 52 Iowa 235,3 N.W. 58 |
| Court | United States State Supreme Court of Iowa |
| Decision Date | 26 October 1879 |
| Parties | LUFKIN & WILSON, APPELLANTS, v. S. S. PRESTON, APPELLEE. |
OPINION TEXT STARTS HERE
Appeal from Jasper circuit court.
This is an action of replevin wherein the plaintiffs seek to recover of the defendant a certain quantity of corn. The corn was raised by certain tenants upon premises of one Morris. There were written contracts of lease between Morris and the tenants by which Morris was to have as rent one-half of the crop in the field at harvest time. The leases were executed in February, 1877, for that year. Shortly after these leases were made Morris assigned them by writings on the back thereof to the plaintiff herein. The defendant recovered a judgment against Morris on the seventeenth day of March, 1877, and on the thirtieth day of May, 1877, he caused an execution to issue thereon, which was levied upon the undivided half of all the corn then standing and growing upon the leased premises. The return of the execution recited that the said corn was levied upon as the property of said Morris. The corn thus levied upon was sold at constable's sale at four dollars per acre, the defendant being the purchaser. The defendant proceeded in the fall to husk and gather one-half of the corn by the permission of the tenants. The plaintiffs claim that they are the owners of the corn by virtue of the assignments of the leases to them, and they aver that the defendant had notice of their ownership of the property before any levy of said execution was made, and that the sale by the constable was fraudulent, and that it was void, because the person who acted as such officer was not in fact a constable. The defendant, in his answer, claims that the constable sale was in all respects regular, and that the person who made the sale was in fact such officer, and that the plaintiffs were not entitled to the corn because the assignment of the leases were without consideration, and were made by Morris, and received by plaintiffs with the intent to hinder, delay, and defraud the creditors of Morris. Other allegations were contained in the pleadings, which we need not set out here. There was a trial by jury, and a verdict and judgment for the defendant. Plaintiffs appeal.S. N. Lindley and Ryan Bros., for appellants.
Sankey & Cook, for appellee.
1. The plaintiffs offered upon the trial to prove by J. W. Butler, the justice of the peace who issued the execution, that at the time the execution was issued, and before any levy was made, the defendant and the constable were both advised that the corn in question belonged to the plaintiffs. Objection was made to this evidence, and the objection was sustained. In this we think the court erred. As there could be no actual manual delivery and a visible change of possession of the growing corn, it was a material question as to whether the defendant, as a creditor of Morris, had notice of the assignment of the leases before he made the levy. Code, § 1923.
2. The court gave to the jury the following, among other instructions:
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LeWis v. W. Stock Remedy Co. of Burlington
...by appellant of the failure to do so, so that we do not now pass upon that question. [7] 3. Appellants contend, and cite Lufkin v. Preston, 52 Iowa, 235, 3 N. W. 58,Burrows v. Waddell, 52 Iowa, 195, 3 N. W. 37, and Gevers v. Farmer, 109 Iowa, 468, 80 N. W. 535, to the proposition that in re......
- Lufkin & Wilson v. Preston