
    Blotcky Bros., Appellees, v. James O’Neill, Sheriff, Appellant.
    1. Attachment: levy on mortgaged chattels: tender to mortgagee. A tender to the mortgagee of the amount due under a chattel mortgage, or the deposit of such sum with the clerk of the district court, by an attachment or execution creditor after the levy of his attachment or execution upon the mortgaged chattels, will not make such levy valid.
    2. ■ — -: -: -: right of possession. After acquiring title to a chattel mortgage the plaintiffs caused execution to issue upon a judgment, held by them against the mortgagor, and had the same levied upon the mortgaged property. Afterwards they served notice of their ownership of said property under said mortgage, and demanded the possession thereof, and its release from levies of execution and attachment in favor of certain other creditors of the mortgagor. Held, that the plaintiffs were entitled to the possession of said property by virtue of said mortgage, but that their demand upon the sheriff for possession operated as an abandonment of their levy upon the property under said execution, and left the property freed from all the writs in the sheriff's hands.
    
      Appeal from Pottawattamie District Gowrt. — Hon. H. E. Deemeb, Judge.)
    Wednesday, October 21, 1891.
    Action to recover possession of a certain stock of merchandise. There was a trial to the court, resulting in a judgment for the plaintiffs. The defendant appeals.
    
      Affirmed,
    
    
      Flickinger Bros., for appellant.
    
      Shea & Galvin, for appellees.
   Given, J.

This action was commenced March 9, 1889, and the questions involved are the sufficiency of the notices of ownership served by the plaintiffs upon the defendant, and whether the plaintiffs were entitled to the immediate possession of the stock of merchandise in controversy at the time of the commencement of this action. The facts material to the determination of these questions are as follows: On the eleventh day of January, 1889, one M. Seipel, being the owner and in possession of the stock of merchandise, executed and delivered to the bank of Neola a chattel mortgage on said stock, which was duly recorded on the same day. On the following day, J. R. Sneider, a creditor of Seipel, caused a writ of attachment to be levied on said stock; and on the same day McCord, Brady & Co. and the Kilpatrick-Koch Dry-Goods Company, also creditors of Seipel, caused executions upon judgments that day rendered in their favor against Seipel to be levied upon the same property. These writs were all placed in the hands of the defendant as sheriff, and levied by him. On the sixteenth day of January following, between eleven and 11:30 o’clock in the forenoon, Henry W. Price, also a creditor of Seipel, tendered and paid to Walter I. Smith, attorney for the bank of Neola, at Council Bluffs, the amount due on said mortgage, and took an assignment of the same, as provided for in chapter 117, Acts of the Twenty-First General Assembly, Smith being theretofore authorized by the bank to accept such a tender. In the afternoon of the same day, and after tender to Smith had been accepted and the assignment made, a tender was made at Neola to the cashier of the bank for the benefit of Sneider, McCord, Brady & Co. and Kilpatrick-Koch Dry-Goods Company, which tender was refused upon the grounds that the bank did not then have the mortgage at Neola. On January 17, 1889, Price assigned the mortgage to the plaintiffs under said chapter 117, and on the same day Price and the plaintiffs each obtained judgment against Seipel, and caused executions to issue thereon, which were placed in the hands of the defendant as sheriff, and by him levied upon the stock of merchandise subject to the three former levies. Price assigned his judgment to the plaintiffs. On the eighth day of March, 1889, the plaintiffs served three notices of ownership upon the defendant, which will be hereafter more particularly noticed, and on the following day, March 9, 1889, commenced this action. On July 20, 1889, after judgment was pronounced in favor of the plaintiffs, and finding that their interest in the property was two hundred and ten dollars, defendant moved the court to require the plaintiffs to accept the tender and costs, on deposit in the court in satisfaction of their interest in the property, to which motion was attached a certificate of the clerk that the defendant had deposited in his hands, for the plaintiffs, two hundred and twenty-five dollars. This motion was overruled, to which the defendant excepted.

I. There is no dispute as to any material facts, and they are substantially as we have stated. The gist 0Í the action ÍS aS to the plaintiffs’ light to the . immediate possession of the • ... property at the time this action was commenced, March 9, 1889. That right must be determined by the facts as they then existed, and cannot be established or defeated by subsequent acts. The errors assigned involve substantially the merits of the case, which are whether the plaintiffs, as attaching creditors under the assignment of the mortgage, were entitled to the possession, or whether the defendant sheriff, under the writs in his hands, and the levies thereof, was entitled to the possession. Both parties rest their claim to possession upon the provisions of chapter 117, Acts of the Twenty-first General Assembly. Prior to that enactment mortgaged property was protected from seizure or lien by attachment or execution, and the only process by which' a creditor of the mortgagor could subject any surplus in the hands of the mortgagee was by garnishment. By garnishment he acquired no right against the property, but only against the garnishee individually to the extent of the surplus. Buck-Reiner Co. v. Beatty, 82 Iowa, 353. It is also held in that case that the remedy provided in chapter 117 is not to the exclusion of the right by garnishment. Section 1, chapter 117, provides “that personal property not exempt from execution, hereafter mortgaged, or heretofore mortgaged, when the debt secured thereby is due, may be taken on attachment or execution issued at the suit of a creditor of a mortgagor; but before the property is so taken the officer or plaintiff must pay or tender to the holder of the mortgage the amount of the mortgage debt and interest accrued, or must deposit the amount thereof with the clerk of the district court of the county wherein the mortgaged property is found, payable to the order of the holder of' the mortgage; * * * and when such sums are tendered to the holder of the mortgage, or deposited with the clerk, the attaching creditor shall be subrogated to all the rights of the holder of the mortgage; and the proceeds from the sale of the mortgaged property shall go first to the discharge of such indebtedness and costs of execution; provided, however, that if the judgment debtor shall pay the debt for which the attachment or execution was issued the property shall be released, and the creditors shall be entitled to receive money deposited to pay the mortgage debt, and shall have no right or interest in the mortgage, or in the mortgaged property.” "While the question is as to the plaintiffs’ right of possession, the right of the defendant is discussed as counter thereto, and as "showing that the plaintiffs were not entitled to possession.

The defendant, as sheriff, had levied an attachment in favor of Sneider, and executions in favor of McCord, Brady & Co. and Kilpatrick-Koch Dry-goods Company, on the mortgaged property. This property was not subject to such levies, only as provided in said chapter 117. The tender made by these creditors to the Bank of Neola was not made until after the attorney for the bank had accepted the tender from Price, and made a complete assignment of the mortgage to him. Price had been subrogated to all the rights of the bank before this tender, and these creditors acquired no rights by iheir offer to the bank. Neither did their subsequent deposit of two hundred and twenty-five dollars with the clerk affect the question of the right of possession on March 9. These creditors had no right-to take the property on attachment or execution, because they had not previously paid or tendered to the holder of the mortgage, nor deposited with the clerk, the amount of the mortgage debt. The bank had ceased to be the holder of the mortgage before their tender to it, and their deposit with the clerk was long after their levies, and after the commencement of this action, if not after its submission. It follows from these views that the levy of the attachment and executions in favor of Sneider and of McCord, Brady & Co. and Kilpatrick-Koch Dry-Groods Company were unauthorized, and gave the defendant no right to the possession of the mortgaged property.

II. There can be no question but that, by the assignment of the mortgage to them, the plaintiffs were to all the rights of the holders of the mortgage, and as such were entitled to possession of the mortgaged property until some other creditor of the mortgagor became subrogated to that right by complying with the requirements of chapter 117. . It is true that at the time of the service of the notices of ownership, and at the commencement of this action the defendant, as sheriff, held two executions in favor of the plaintiffs, which he had levied upon the mortgaged property. It is also true that the property had not been released therefrom by payment of the debts by Seipel, nor did the plaintiffs in express terms release their executions. They did notify the defendant sheriff of their interest in the property, how they had acquired such interest, and for what consideration, and that the property belonged to them, and demanded a release of it from the levies in favor of Sneider, McCord, Brady & Co. and Kilpatrick-Koch Dry-Groods Company. While the motion did not in terms demand or order a release from the plaintiffs’ levies it would hardly be contended that in the face of such notices the sheriff would be hable to the plaintiffs for surrendering the property to them on their demand, and for not continuing to hold it under the executions in their favor. At and before the commencement of this action the plaintiffs stood as the holders of the mortgage. None of the other creditors had acquired any interest therein under chapter 117, or otherwise. The claim to immediate possession by the plaintiffs was in fact an abandonment •or' release of their levies upon the property, and, therefore, left the property freed from all the writs in the defendants’ hands.

We reach the conclusion that the court did not err in either of the respects assigned as errors, and that the findings and judgment should be affirmed.  