
    Goodrich v. Munger et al.
    
    -Husbandand wife: wife’s property: mortgage: record notice. Where the wife took a mortgage upon personal property from her husband, to secure her in a bona fide debt, and caused such mortgage to be duly recorded, and left the property in the husband’s control and possession, it was held, that her right thereto under the mortgage was paramount to that of a subsequent vendee of the husband, although she had not recorded any other notice of her ownership, under the Revision, sections 2499 and 2502.
    
      Appeal from Black Hawk Circuit Court.
    
    Thursday, December 22.
    This was an action of replevin in which the plaintiff claimed the possession of a certain black mare.
    The petition alleges that plaintiff acquired the ownership of the mare by purchase from John W. Hunger; that the defendants wrongfully detained the mare by virtue of a pretended chattel mortgage, made to Rachael J. Hunger, by John 'W'., her-husband.
    The defendants answered, alleging in the second count of their answer, that while John W. -Hunger was the owner of the mare in question, he, for a valuable consideration, executed and delivered to Rachael J. Hunger (his wife) a chattel mortgage, which was duly acknowledged and recorded; that said mortgage was prior and superior to the claim of the plaintiff; that it is wholly unsatisfied, and that the said Rachael J. Hunger and A. H. Hiserodt, who is a constable, took said mare under and by virtue of said mortgage for the purpose .of foreclosure. A copy of the mortgage is annexed to the answer. There is no allegation either in the petition or answer as to who held the actual possession at the time of the alleged purchase by the plaintiff from John W. Hunger.
    
      To this second count of the answer, plaintiff demurred on the grounds:
    1st. That defendants do not allege that Eachael J. Munger had filed a notice of her ownership or claim to the property with the recorder of deeds.
    2d. That it is not alleged that she was the wife of John W. Munger.
    The demurrer was sustained, defendants excepted and stood on the demurrer. Judgment was rendered against them for the property and costs, and they appeal.
    
      Boies, Allen <& Oouoh for the appellants.
    I. The decision of the court is founded upon the theory that the mortgage to Mrs. Munger conveyed to her the legal title to the property in question, and rendered it necessary for her, in order to hold it as against her husband’s grantees or creditors, while under his control, to file the notice required by the statute. If the theory is correct, the plaintiff should have averred that, at the time of his purchase from J. W. Munger, he had the control of the property in question. It is true, the mortgage provides that he shall retain possession until default in the payment of the sums secured thereby, unless the mortgagee shall deem herself in danger. But inasmuch as plaintiff’s title depends wholly upon the question of the possession of J. W. Munger, at the time of his sale, and of plaintiff’s ignorance of the claims of Mrs. Munger, it seems to us that the fact of such possession should be averred and proved, to entitle the plaintiff to recover. Bartlett v. Brown, 29 Iowa, 521.
    II. But the main question, in this case, relates to the correctness of the 'decision conceding the possession to have-been in J. W. Munger when he sold to plaintiff. The note and mortgage were property, as much as the horse, and they were the property of Mrs. Munger. These she kept under her own control, and beyond the reach of her husband’s grantees or creditors; and yet the sole value of the mortgage, to her, consisted in her right to foreclose it. It could not have been intended by the legislature that, with reference to this species of property, she should be obliged, not only to keep in her own possession the securities, but file her notice of ownership of the mortgaged property. She is not, within the meaning of the statute, the owner of both the mortgage and the mortgaged property, and the sole reason for the rule requiring her to file her notice is, in this case, obviated by the notice which her recorded mortgage gives to every one, of her claim.
    III. But the law was made to meet an entirely different case from this. It was designed to protect the grantees and creditors of the husband from imposition and- fraud, which the wife had empowered him to practice by giving him the custody and apparent ownership of personal property belonging to her. Applied to the case for which it was designed, it is a wise and just law; but to apply it to this case, is to divert it wholly from its purpose, and make it an entirely useless enactment; for the filing of such a notice could not add to the notice already given by the recording of the mortgage in the same office.
    IV. Again, we insist that the mortgage itself is all the notice which the statute requires. It contains every possible element of a notice of her ownership. It describes the specific articles of personal property which she claims. It recites that it is left under his control, and it is recorded in the identical office where her notice of ownership is required to be recorded.
    There can be no reason urged for the recording of another notice, different in form, but identical in substance. See § 2502, Rev.
    
      Hewitt & Dodge for the appellee.
    I. . If the bill of sale had any validity, the legal title to all the property described therein vested in Mrs. Munger upon its execution and delivery. Campbell v. Leonard, 
      11 Iowa, 489; Talbot v. JDeForest, 3 Gr. 586; Melody v.' Chandler, 3 Fairf. 282; Montgomery v. Kerr, 1 Hill (S. C.), 291; Hopkins v. Thompson, 2 Post, 433 ; 7 Cowen, 290; 1 Pick. 389; 6 Gill. & Johns. 72; 3 Gill. 45 ; 56 Pick. 610; 8 Johns. 96; 4 Kent’s Com., 138; Story on Bills, 197; Bean v. Barney, Scott & Co., 10 Iowa, 501.
    But by the terms of the mortgage the property was “ left under the husband’s control,” and that the husband assumed such control is undeniably shown by the petition, that avers that Goodrich acquired ownership of the mare by purchase from the husband. If under the wife’s control at the time of sale, then her assent would follow as a matter of course, and she could not re-possess herself under the chattel mortgage.
    II. It is not denied that a legal sale may be made from husband to wife direct; but such sale relates under our code, only to “ mcwmer and form, and leaves the substantial rights of all parties unchanged,” and as at common law. Rev. 1860, § 2200.
    At common law the possession of the wife was the possession of the husband. All personalty vested' at once in the husband, as if he had acquired it by purchase. 2 Black. Com. 433; Bouv. Inst. Index, p. t.; Chitty Pr. Index, h. t.; Yern by Raithby 7,17, 48, 261; Yelv. 106 a, 156 a, 166 a; 1 Salk. 113 to 119‡; 2 Kent’s Com. 109 ; 1 Phil. Ev. 63; Canning on Int. Husband and Wife; Clancy on Rights, Duties and Liability of Husband and Wife.
    III. Our code has modified the significant common-law words “ at once ” by enacting that: If left under his control it will vest in him as between herself and subsequent purchasers, unless she takes the steps pointed out in sections 2449, 2500-2504 of the chapter of the Revision devoted to the “ Domestic relations.” Rev. 1860, § 2499; Smith v. Hewett, 13 Iowa, 94; Odell c& Zfpdegraff v. Lee <& Kmnard et al., 14 id. 411; Pierson v. Heisey, 19 id. 114.
    
      IY. Section 2201 does not apply to this class of cases, and that it does not apply is expressly held in Pierson v. Heisey, 19 Iowa, 114, and expressed by the statute in the plain, explicit words, “ Except as hereinafter provided ” in section 2499 of Revision. Hence the execution and recording of the chattel mortgage from Munger to his wife is no notice to Goodrich, who was the purchaser from the husband, in good faith, and this upon principle; for where the common law is abrogated by a statute the statutory provision must be strictly pursued. But section 2201 of the Revision was intended tp re-apply to those cases only where the relation existing between the parties is that of vendor and vendee, without the additional relation of husband and wife.
    Y. The joint possession and common use of the mare in question, by Munger and his wife, at least prima fade placed the property under the control of the husband, and a sale by him to Goodrich, a subsequent purchaser in good faith, will hold against the claim of the wife, unless she protects herself by a strict compliance with the provisions and requirements of section 2499. Smith v. Hewett, 13 Iowa, 94; Odell <& XTpdegraff v. Lee <& Kinnard et al., 14 id. 411.
    YI. What property Mrs. Munger had in the written security was “conveyed to the wife by her husband.” Hence, knowledge of her ownership in the same will not be presumed in her favor and against Goodrich, without the recording required by the provisions and requirements of section 2499. See section 2504, Rev.
    YII. The record in this case shows that these written securities “ are assignable only by indorsement thereon, or by other writing,” and do not pass by mere delivery. Hence the force and applicability of this section to the case at bar.
    YIII. Chapter 101 of the Revision treats of the relation of husband and wife, and her separate right to property. Chapter 93 treats of the transfer of personal property in the relation of vendor and vendee. The recorded chattel mortgage discloses the relation of mortgagor and mortgagee, under chapter 93. If Mrs. Munger would avail herself of 'her rights under chapter 101, she must, by notice, disclose the relation of husband and wife treated of in that chapter; and as such wife (and not simply as mortgagee) claim the specific articles as her separate property.
    IX. Section 2503 requires that “ The notices aforesaid must be recorded in the book kept for recording mortgages and conveyances of personal property, and indexed in like manner,” — language utterly irreconcilable with the theory that the recording of a chattel mortgage is sufficient notice, under chapter 101, and wholly refutes the ax*gum’ents, and shows the positions of appellants to be untenable.
    X. The provisions and requirements of section 2499 were made to meet precisely such cases as the one at bar. Its design was to protect the wife in her separate rights of personal property against the unscrxxpulous acts of her husband, and against the demands of his grantees and creditors; but its provisions are to be strictly pursued by her, that purchasers from her husband may be fully protected from collusion and fraud by the husband and wife; and that she, if negligent, shall not be preferred before the purchaser in good faith.
    XI. By the answer filed in this case, Mrs. Munger seeks to hold the property in conti’oversy as mortgagee, under the px’ovisions of chapter 93. But being the wife of the defendant, John W. Munger, thus sustaining another and additional relation to him who sold the mare to Goodrich, she must pursue the course marked out by section 2499, to px’otect her rights to said property.
    Hence appellee urges that there can be no doubt of the correctness of the ruling sustaining the demurrer.
   Miller, J.

The question raised by the demurrer is, whether where the husband executes to his wife a chattel mortgage of personal property, and remains in possession. in pursuance with the terms of the mortgage until default, the wifé’s interest is protected against a third party purchasing from the husband, by the recording of the mortgage without recording the notice prescribed in section 2502 of the Revision of 1860.

The court below in sustaining the demurrer held that her interest was not protected. ~We think otherwise. Personal property owned by the wife, in the control of her husband, will, in favor of third persons acting in good faith and without knowledge of the real ownership, be presumed to have been transferred to him, unless notice of her ownership is filed for record with the recorder of deeds of the county. Revision of 1860, §§ 2499, 2502; Odell & Updegraff v. Lee & Kinnard, 14 Iowa, 411. So, also, personal property in the joint or common use and possession of the husband and wife is prima facie under the ( control of the husband, and liable to be seized for his debts, unless such notice is filed. Smith v. Hewett, 13 Iowa, 94.

The ownership of the wife and the possession of the husband being inconsistent, the statute provides that the ownership shall, as to third persons without notice of the real ownership, be presumed to be in the party having the possession. But in this case the wife’s interest as mortgagee is not inconsistent with the husband’s possession when she records her mortgage and thereby gives notice to the world of such interest. Revision of 1860, § 2201.

The -case of Pierson v. Heisey, 19 Iowa, 114, cited by appellee, was a case where a daughter claimed to be the owner of the property by gift from her father, which was kept in his house where she lived, possession having been taken by her, and was under her sole and exclusive control, and it was held that the property would not, under such circumstances, become liable for his debts, the gift being made in good faith while he was solvent. That case does not bear upon the question before us.

The demurrer admits the facts alleged in the answer, viz.: that Mrs. Munger held a chattel mortgage upon the mare, that it was duly acknowledged and recorded, and that the money it was given to secure was due and unpaid. The possession of the mare by her husband was entirely consistent with her lien upon or interest in the property as mortgagee, and the plaintiff purchased with record notice of her rights. Whether the mortgage was a fraud or not, does not arise on the demurrer.

The judgment is reversed and a new trial ordered.  