West v. St. John

• Citation: 19 N.W. 238,63 Iowa 287
• Parties: WEST v. ST. JOHN
• Decision Date: 23 April 1884
• Court: United States State Supreme Court of Iowa

19 N.W. 238

63 Iowa 287

WEST v. ST. JOHN

Supreme Court of Iowa, Dubuque

April 23, 1884

Appeal from Mitchell Circuit Court.

ACTION for the recovery of an undivided interest in certain stacks of grain. The plaintiff alleges that he is entitled to the possession of the property by virtue of a contract with one David Pickel; that Pickel, being indebted to him in the sum of $ 268, transferred said property to him to secure the payment of said debt, and with the agreement that the proceeds thereof, after deducting the expenses of threshing and marketing the grain, should be applied in payment of said debt; that this contract was oral, but that he took possession of the property under it; that defendant, as sheriff, seized said property on an execution issued on a judgment against said Pickel, but that he had notice, before the levy, of his (plaintiff's) interest in the property and he alleges that said levy was afterwards abandoned; that the execution was surrendered and returned to the execution plaintiff for the purpose of having it levied on other property in another county; and that other property belonging to Pickel, and situated in Worth county, was seized upon it.

The defendant in his answer admits that he levied upon the interest of said Pickel in said stacks of grain, by virtue of an execution against said Pickel in favor of Gammon & Deering, and he denies all other allegations. There was a verdict and judgment for defendant, and plaintiff appeals.

AFFIRMED.

M. M Brown and L. M. Ryce, for appellant.

J. H Sweeney, for appellee.

OPINION

REED, J.

I.

The evidence given on the trial tended to prove the contract between plaintiff and Pickel, substantially as it is alleged in the petition. It shows that the grain was raised by Pickel on the farm on which he lived, and which he cultivated as a tenant. When the contract was made, a portion of the grain was not yet stacked, and it was agreed that Pickel should finish the stacking; also, that he should protect the stacks from the cattle until plaintiff could thresh the grain. Plaintiff lived a mile and a half from the place on which Pickel lived, but was on that place when the contract was made, and the stacks were pointed out to him. He went to the stacks a number of times after the contract to look after them. Defendant made the levy about eight or ten days after the contract was made. Pickel had not yet finished the stacking when the levy was made, and nothing had been done with the property which would in any manner indicate that there had been a change of ownership.

The only evidence which it is claimed had any tendency to prove that either defendant or the plaintiff in execution had notice of plaintiff's purchase, before the levy, was the testimony of Pickel, who swore that he told defendant on the day of the levy that he had no interest in the property. The court, after telling the jury that, if the property remained in Pickel's possession and under his control after the contract, the sale to plaintiff would not be valid as against the creditors of Pickel who had no notice of the sale, but that, if defendant, or the plaintiff in execution, had actual notice of the sale to plaintiff at the time the levy was made, or prior to that time, they acquired no interest in the property as against plaintiff, gave this instruction: "But on the question of notice, the burden of proof is on plaintiff to establish the same by a preponderance of evidence." The plaintiff assigns the giving of this instruction as error.

The position of counsel is that, when plaintiff had proved a sale of the property by Pickel to him, which was good as between them, the burden was on the defendant, who was disputing his right, to establish such facts as would defeat it.

The satisfactory answer to this claim, however, is, that plaintiff is asserting a right to the property as against the defendant, and the burden is on him to establish his right. To entitle him to recover as against defendant, he must prove that his right to the property is superior to that claimed by defendant. His right to the property as against Pickel is dependent on the single fact of the sale by Pickel to him; but as against a creditor of Pickel, who has caused it to be seized on process against Pickel, it is dependant on two facts, viz., the sale by Pickel to him, and notice of that fact to the creditor before the seizure; and it is manifest that he is not entitled to recover until he has established each of these facts.

II. The court instructed the jury that, if defendant, at the time of the levy, or prior to that, had good reason to suspect or believe that plaintiff...