Waterhouse v. Black

• Decision Date: 26 January 1893
• Citation: 87 Iowa 317,54 N.W. 342
• Parties: WATERHOUSE v. BLACK, SHERIFF.
• Court: Iowa Supreme Court

87 Iowa 317

54 N.W. 342

WATERHOUSE

v.BLACK, SHERIFF.

Supreme Court of Iowa.

Jan. 26, 1893.

Appeal from district court, Louisa county; W. R. Lewis, Judge.

Action to recover the possession of specific personal property. There was a trial by the court without a jury, and a judgment in favor of plaintiff. The defendant appeals.Fred Courts, Jr., and L. A. Riley, for appellant.

E. W. Tatlock, for appellee.

ROBINSON, C. J.

The petition alleges that plaintiff is entitled to the immediate possession of the surplus of 35 acres of corn growing on the S. E. 1/4 of the N. W. 1/4 of section 24, in township 73 N., of range 2 W., after deducting the amount due Souster, Cabeen & Humbert evidenced by a mortgage given to them on the 4th day of October,1889, and also to the immediate possession of two thirds of 10 acres of corn growing on the S. W. 1/4 of the S. W. 1/4 of the same section; that he acquired such right of possession by virtue of a chattel mortgage executed on the 18th day of October, 1889, by William Bell, who then owned the property, to secure the payment of a promissory note for the sum of $350; that the corn is of the actual value of $10 per acre, and is detained by defendant as sheriff, as plaintiff believes, under an execution issued in favor of Pritz & Adelsdorf against the property of Bell, and levied upon the property in question; that the levy was void; that the mortgage of plaintiff is unpaid, and that he has sustained damage in the sum of $25 by reason of the wrongful detention of the property by defendant; that he has served a written notice on the defendant that the property belonged to him, and demanded possession thereof; that a copy of notice is attached to the petition. Judgment is demanded for the possession of the property, or, if it cannot be found, for its value. The answer admits the levy, and states that it was made under the execution described, and under another, in favor of the Exchange Bank, and against the property of Bell. It admits that the value of the corn is as stated, and admits the service of a notice, but denies its sufficiency. It denies that defendant was in possession of the corn when the action was commenced, and alleges that it had been taken from him prior to that time under a writ of replevin issued in an action against him in which Souster, Cabeen & Humbert were plaintiffs. Notice of the mortgage of plaintiff, and all allegations of the petition not admitted, are denied. The district court found that plaintiff was entitled to the possession of the corn, and that he had suffered damage in the sum of $10 by reason of its wrongful detention. Judgment was rendered in favor of plaintiff for the possession of the corn, and provided that, in case it could not be found, he should recover of defendant, for his interest in the corn, and damages, the sum of $351.31.

1. The chattel mortgage under which plaintiff claims was introduced in evidence against the objection of defendant. It was recorded before this action was commenced, but the acknowledgment was so defective that the record of the mortgage did not impart constructive notice of its contents. The acknowledgment was not, however, essential to its validity; and it was effective, as between the parties to it, and as against all parties having notice of it. Morse v. Beale, 68 Iowa, 467, 27 N. W. Rep. 461; Lake v. Gray, 30 Iowa, 416; Jones v. Berkshire, 15 Iowa, 249. There was evidence which tended to show that Bell notified defendant of the mortgage before the levies in question were made. The petition alleged that the mortgage was duly recorded, and did not charge that defendant had actual notice of it when the levies were made. The answer alleged that defendant did not have either actual or constructive notice of it when he made the levies, and that allegation was not denied by a reply. A reply was not necessary, however, as a denial was made by the law. The petition showed clearly that plaintiff's right of recovery was founded on the mortgage. The defendant presented the question of notice by the affirmative allegations of his answer. Under these circumstances, there was no error in admitting the mortgage in evidence on the proof of actual notice of its existence given to defendant before the levies were made.

2. The defendant objected to the introduction in evidence of the notice of ownership, which was served on him before the commencement of this action. The ground of the objection is that the notice stated that plaintiff was the owner of the corn, while the undisputed fact was that his only right to it was given by the chattel mortgage. The case of Kern v. Wilson, 73 Iowa, 490, 35 N. W. Rep. 594, is relied upon as supporting the objection of defendant. The petition in that case alleged that the plaintiffs were the absolute and unqualified owners of a stock of drugs, and it was held that the trial court erred in admitting in evidence, to prove the ownership alleged, a chattel mortgage. The decision was based upon the fact that the statute requires petitions, in cases of that kind, to state “the facts constituting the plaintiff's right to the present possession” of the property, “and the extent of his interest in the...