Border v. Benge , 12 Iowa 330 ( 1861 )

Lowe, C. J.

Action of replevin between two constables, each of whom had an execution against one Ashbough. Plaintiff claims to have made his levy upon the mare in question on the 27th day of October, 1857, leaving the animal, however, in the possession of the defendant in the execution, without taking any delivery bond. The defendant effected his levy upon the same animal on the 2d day of November following, and reduced the property to his custody under said levy, and held the same till replevied by the plaintiff on the 11th of the same month. On the succeeding day (the 12th) the animal was sold on the execution in the plaintiff’s hands. No evidence that the defendant at the time he made his levy had any notice of the plaintiff’s prior levy.

Held, by the court, that under the above state of facts the defendant’s right of possession was paramount to the plaintiff’s. This being the law of the case the judgment is

Affirmed.