Prather v. Parker

24 Iowa 26

• Court: Supreme Court of Iowa
• Decided: January 27, 1867
• Status: Published

Opinion

Wright, J.

sale of possession by vendor. Assuming that the property was in the actual possession of the attachment defendant at the time the levy, and after the alleged sale to plaintiffs (a fact fairly warranted from the testimony), we say, assuming this to be true, the judgment below should not be disturbed. This is clearly the doctrine of the following cases: Miller v. Bryan, 3 Iowa, 58; McGavran v. Haupt, 9 Id. 83; Crawford v. Burton, 6 Id. 476; Courtright v. Leonard, 11 Id. 32; Day v. Griffith, 15 Id. 104. And indeed from it there seems to be no fair escape under section 2201 of the Revision, which declares such sales invalid against existmg creditors, where the vendor retains actual possession, unless a written instrument conveying the same is executed, acknowledged and filed for record.

In Thomas v. Hillhouse (17 Iowa, 67), relied upon by appellants, the property did not remain, or was not at the time of the sale, in the possession of the mortgagor or vendor. And the same is true of Allison v. Barret (16 Iowa, 278); and Sansee v. Wilson (17 Id. 582). The eases in principle and in view of the provisions of the statute, are clearly distinguishable.

Affirmed.