Pope v. Cheney

• Decision Date: 21 April 1886
• Citation: 27 N.W. 754,68 Iowa 563
• Parties: POPE AND OTHERS v. CHENEY. (PORTER, INTERVENOR.)
• Court: Iowa Supreme Court

68 Iowa 563

27 N.W. 754

POPE AND OTHERS

v.CHENEY. (PORTER, INTERVENOR.)

Supreme Court of Iowa.

Filed April 21, 1886.

Appeal from Polk circuit court.

Plaintiffs, in an action of attachment against Cheney, caused a large quantity of corn in cribs to be levied upon by the writ of attachment issued in the case. Porter intervened, claiming to own the attached corn. A judgment was entered against defendant in favor of plaintiffs, and against plaintiffs and in favor of the intervenor. Plaintiffs appeal from the judgment against them in the proceedings of intervention.Wright, Cummins & Wright, for appellant.

Good & Phillips and C. P. Holmes, for appellee.

BECK, J.

1. The intervenor claims property in the corn under an oral sale and delivery by defendant before the levy of the attachment. The decisive question in the case involves the sufficiency of the sale and delivery to pass the property in the corn as against the attaching creditors. The evidence shows, without dispute, that the intervenor, being bound as an indorser or joint maker of several promissory notes executed by defendants, purchased the corn of defendants, payment therefor being made by the application of the amount of the price upon these notes. The defendant executed a bill of sale to the intervenor for the corn, but for some reason it was not satisfactory. Thereupon an oral sale was made, and the parties went to the cribs, where the defendant formally delivered possession thereof to the intervenor, who proceeded to nail up openings in the cribs. There was no conflict of evidence as to these facts, and thereon the circuit court instructed the jury that the intervenor became fully vested with the ownership and possession of the corn, and directed them to return a verdict for the intervenor.

2. We are required to determine whether, upon the facts established, there was such a change of possession of the corn as would pass the property therein against existing creditors, without notice, in the absence of a written conveyance of the corn, as required by Code, § 1923. The question of possession of property in any case must, of necessity, depend upon its peculiar facts. It is obvious that all articles of personal property cannot be subject to the dominion and control of the owner in the same manner and to the same extent. Those articles of great bulk, or to some extent immovable in their nature, cannot be held in possession and under control like smaller things which may be readily moved, or over which their owner may have the power to exercise absolute personal possession manu tenere. It is obvious that the possession of those things of great bulk, which are usually not moved until wanted for use, and over which the owners cannot, or ordinarily do not, exercise constant personal supervision and control, is not to be determined by the fact of the manual holding and personal presence and control of the owner which would be required in cases of less bulky things, more readily moved, which are usually subject to personal control of the owner or his agents. It would seem that possession of articles of personal property is to be determined by this rule: when the owner exercises the control of a thing in the manner and to the extent usual in cases of property of like character, and holds possession over it to the extent to which it is capable of being possessed, according to the ordinary manner of using and handling such things, it is to be regarded as in his legal possession. An analogous rule has been applied by this court to the determination of the question of the possession of real estate. See Booth v. Small, 25 Iowa, 177

Applying this rule to the case before us, we are led to conclude that the intervenor was in the possession of the corn when it was seized by the sheriff. It is not usual for the owner of a large crib of corn, awaiting a price which will justify its shipment to market, to exercise any different control over it. or to indicate his possession thereof by different acts than by those done by the intervenor. He publicly proclaimed his ownership, and did what he esteemed necessary for the preservation of the property. It is to be presumed that inquiry at the place where the corn was cribbed would have revealedhis ownership. At all events, he could have taken possession in no different manner, and could have exercised ownership in no different way, than that pursued by him. He was, in contemplation of the law, in possession of the property. The decisions of this court cited by plaintiffs' counsel to support his position that the intervenor was not in possession of the corn differ wholly in their facts from the case at bar. In none of them was there a change, or attempt to change, the custody and control of the property. In each case the property was “left with the seller, whose relations to it continued unchanged, so far as the world could know, by the acts of the parties.” In this case the seller ceased to control the corn, and the intervenor exercised whatever care or control over it was demanded by its condition. The following are the cases cited by plaintiffs' counsel: Boothby v. Brown, 40 Iowa, 104;Sutton v. Ballou, 46 Iowa, 517;McKay v. Clapp, 47 Iowa, 418;Smith v. Champney, 50 Iowa, 174;Hickok v. Buell, 51 Iowa, 655;S. C. 2 N. W. Rep. 512;Nuckolls v. Pence, 52 Iowa, 581;S. C. 3 N. W. Rep. 631.

3. Witnesses for the intervenor testified that defendant executed a bill of sale to the intervenor, which, however, was not satisfactory, and the oral sale was then made. Subsequently, three or four days after the delivery of the corn upon the oral sale, which was on the day of the levy of the attachment, the bill of sale was recorded. It very...