Flannigan v. Althouse, Wheeler & Co.

Adams, Oh. J. 1. evidence : ertysokion5 execution: appraisement, I. To prove the value of the property-sold the plaintiff offered in evidence the appraisement attached to the sheriff’s execution. The defendants objected to the appraisement as incompetent , . , , and immaterial, but the court overruled the objection, and the appraisement was read in evidence. In our opinion it was not proper to prove the value of the property in this way. The appraisement, it is true, is provided for by law, but not for such a purpose. ' We think that the value should have been proven by witnesses introduced upon the stand who should first show themselves competent to testify upon such a subject, and even then it would have been the right of the defendants to test their judgment by a proper cross-examination. It is claimed by the plaintiff that there was other competent and undisputed evidence showing that the value of the property was not less than the amount of the verdict, but we fail to discover such evidence. 2.--: cm-on execution, II. The appraisement introduced in evidence included certain sheep valued at $45. The return upon the execution did not show that any sheep were levied upon or sold. To prove, however, that the officer took sheep from Murray’s farm, he was examined upon the stand and was asked, “How many sheep did you take from his farm?” The defendants objected to the testimony as not the best evidence. The court overruled the objection, and the witness answered, “ I think there were thirty. Four were afterwards left at Searle’s. I don’t know whether they were ever returned to Murray or not.” The defendants were liable for only such property as was seized by the officer by virtue of his execution. Now section 3043 of the Code provides that where an execution is levied “an exact description of the property at length, with the date of the levy, shall be indorsed upon or appended to the execution.” This indorsement, constituting the officer’s return, be [515] comes the evidence as to what property is covered by the levy. Herman on Executions, section 236; Le Barron v. Taylor, 53 Iowa, 637. The defendants’ objection to the officer’s testimony we think was well taken, and should have been sustained. s. rsrsTBuctxob : mortgage: fraud, III. The court gave an instruction in these words: “It is incumbent upon the plaintiff to show by a preponderance of evidence that John Murray owned the property mortgaged, and that the mortgage was executed by John Murray to him, and it is incumbent upon the defendants to establish the fraudulent combination to defraud creditors. If fraud is established between Davis & Thomas and Murray, then the plaintiff must show that he took the mortgage without notice of the fraud.” The defendants claim that the last part of the instruction is erroneous, because it carries a plain implication that if the plaintiff took his mortgage without notice of the fraud he would hold the property as against the creditors of Davis & Thomas, even though the property belonged to them and had been fraudulently transferred to Murray. The defendants averred in their answer that the mortgage was without consideration, and the evidence tended strongly to show that the consideration was not such as would constitute the plaintiff a bona fide purchaser for value in such sense as to give him a superior equity as against the defendants. If he took the mortgage to secure an antecedent debt and gave no extension, as the jury, we think, might have found, then it was sufficient for defendants to merely .establish the fraud. Ryan v. Chew, 13 Iowa, 589. As the instruction tended to preclude the jury from this consideration it appears to us that it cannot be approved. Eeveksed.