123 Iowa 274 | Iowa | 1904
A. J. Bullard, of Lee county, Iowa, died testate in the year 1884. By his will, which was duly probated, the widow, the defendant Fannie Billiard, was given the use of the lands of which the testator died^seised, until the youngest daughter, then about four years old, should attain her majority, at which time the land was to be sold and the proceeds equally divided between the widow and eight children, each taking a one-ninth part. The widow elected to take under the will, and continued to occupy and use the land. In the course of a few years she became involved in debt, and allowed the land to become burdened with delinquent taxes, for the payment of which she borrowed a sum of money from the German-American Bank, me obligation thus assumed being witnessed by a joint promissory note signed by Mrs. Bullard and Wilson Bullard, the latter being in fact a surety only. This note was placed in judgment against both makers on June 6, 1893. A year later another judgment, in favor of George Marshall, was rendered against Mrs. Bullard alone. These' judgments became lieus, in tlie order named, upon the real estate, if any, of Mrs. Bullard in said county. Thereafter, under execution issued upon the first judgment, the sheriff sold the interest of the said Fannie Bullard in the lands of which her husband died seised, Wilson Bullard being the purchaser at said sale. The amount
It is the claim of Wilson Bullard — and his claim has support in the evidence — that the dismissal of the action against him was in pursuance of an agreement in open court, with the acquiescence of all parties, that his rights should not thereby be prejudiced. In view of the entire record and conceded circumstances, we are led to conclude that Wilson Bullard, whom wé assume to have been a family relative, did not care to insist upon an absolute title under his sheriff’s deed, but was content to be assured of the repayment of the money he had expended as surety for Fannie Bullard and it was the understanding that his claim if established, should be considered in the nature of a lien upon the interest of Fannie Bullard in the land, and be provided for as such in the distribution of the proceeds of the sale. In -other words, it seems to have been thought that his right, if any, could be determined and protected under the statutory provision for the adjustment and satisfaction of liens in partition cases. Code, sections 4247-4249. This conclusion is strengthened by the further fact that none of the several persons holding or claiming liens were made parties except as they, including Wilson Bullard, were subsequently brought in by notice from the referees acting under the statute above referred to. It is probable, however, that counsel for Fannie Bullard did not thereby intend to concede the existence of any right in Wilson
After the dismissal of Wilson Bullard as a party to the proceedings, a decree was entered by the court, which, among other things found the defendant Fannie Bullard to be the owner in fee simple of a one-ninth part of the land. Said decree also provided for the appointment of a commissioner to ascertain and make report of “all incumbrances, if any exist by mortgage, judgment, or otherwise, against the said realty.” A report made in pursuance of this order disclosed the judgment in favor of the German-American Bank, and the sale and deed thereunder to Wilson Bullard. It also disclosed a deed of conveyance made September 21, 1900 (after the commencement of this suit), by Fannie Bullard to her attorneys, Herminghausen & Herminghausen, purporting to convey to them all her right, title, and interest in the estate, real and personal, of Andrew J. Bullard. On the same date said attorneys, with D. F. Miller, who was associated with them in said cause, entered upon the combination docket of the trial court a notice or claim of an attorney’s lien in the sum of $500, “against the rights and interests of said Fannie Bullard involved in said action.”
Sale of the land by the referees having been made, there remained, after paying costs and expenses, an unexpended balance, the one-ninth of which, $1,538.07, represents the share of the widow under the will, and constitutes the fund about which this controversy is waged. The rival claims are as follows:. (1) Wilson Bullard sets up the history of his claim as above indicated, and asks to have the entire fund awarded to him as the owner under the sheriff’s deed; or, if this cannot be done, then that he be adjudged to have a first lien on said fund for the amount paid by him as surety for Fannie Bullard. (2) George Marshall, owner of the second judgment, contends that Wilson Bullard’s lien was eliminated by the sheriff’s sale, and that, being a codefendant in the judgment, said Wilson Bullard could not take title to the
The trial court decided that from the fund in dispute the sum of $500 should be first paid in discharge of the claim for attorney’s fees; that, next in order, Wilson Bullard be reimbursed for the amount expended by him as surety for Fannie Bullard; and that the remainder be paid to Herminghausen & Herminghausen, as grantees under the deed from said Fannie Bullard. From this order George Marshall, Wilson Bullard, and Herminghausen & Herminghausen severally appeal.
I. We give first attention to the appeal of Herminghausen & Herminghausen. As the order of distribution made by the district court recognized and confirmed the claim of these parties to an attorney’s lien, their appeal brings up nothing for our disposal, except the effect to be given to the deed or conveyance to them by Fannie Bullard, September 21, 1900. It is contended that this instrument vested in said grantees the entire property rights, and interest received by Mrs. Bullard under the will of her husband, unincumbered by lien or claim of any kind in' favor of Wilson Bullard or George Marshall. It is said in support of this proposition that, the will having directed the sale of the lands, they are to be treated, under the doctrine of equitable conversion, as personal property, and therefore not subject to judgment liens. This contention cannot prevail. If ever available to Fannie Bullard or to her grantees, the claim is put forward too late.
The parties to this action, being all who have any right to claim under the will of the testator, having elected to treat the property as real estate instead of personalty, must be held to have effected a reconversion, if, indeed, an equitable cop-version ever took place. We must therefore hold'that the judgment in favor of the German-American Bank and George Marshall became liens upon the interest or share of Eannie Bullard in said lands.
Looking, then, to the conceded fact that Wilson Bullard was a surety only, he was justifiably interested in having the debt paid so far as possible by his principal, or by the sale of her property; and we know of no rule by which, when her property was levied upon and offered for sale in satisfaction of the judgment, he could not purchase and hold it by as good title as if he were an entire stranger. The principle does not differ essentially from that applied in Bleckman v. Butler, 77 Iowa, 128. In that case a judgment was rendered against a mother and son, and land of the son was sold thereunder. The mother procured a third person to take an assignment of the certificate of sale in her interest. A subsequent lienholder insisted that this action upon part of the mother operated as a payment of the judgment and extinguished 'the lien; but, it appearing that she was simply a surety for the son, we there said: “While she was a party to the judgment, she was such as surety for her son. This relation would authorize her to acquire the judg ment and to retain it unsatisfied for her own protection. The relation as mother prompted her to aid the son, and in doing, this she could acquire the judgment, and the payment for
It is further urged that, when finally brought into the case after the entry of the decree, he claims merely a lien and not title. We must admit that the pleadings manifest some uncertainty in the pleader as to the extent of his rights, and
III. It follows from the conclusions already announced that the appellant George Marshall obtained a lien on tlio land for the payment of his judgment, superior to all other claims except that of Wilson Bullard; and as the purchase of the land by the latter at sheriff’s sale under the prior judgment was treated by him simply as a method or securing toe payment of his claim, leaving the equitable title in Nannie Bullard, the lien of the Marshall judgment was not eliminated, but continued to attach to such equitable interest of the judgment defendant. As we have already noted, the conveyance to Herminghausen & Hermmghausen was subsequent to the origin of this lien, and must be held subject thereto.
As between the several parties appealing, we may therefore state their rights in the fund in controversy as follows:
(1) Wilson Bullard is to be repaid the amount expended by him in the purchase of the land at sheriff’s sale, with interest as above indicated.
(2) George Marshall is next to be paid the amount of the judgment in his favor against Fannie Bullard.
(3) After the satisfaction of the aforesaid claims, the remainder, if any, will be paid to Ilerminghausen & Ilerminghausen, as grantees of Fannie Bullard.
Upon the appeal of George Marshall, the decree of the district court must be reversed. On the appeal of Wilson Bullard, said decree will be so far modified as to make his claim the first lien upon said fund. On the appeal of Ilerminghausen & Ilerminghausen, said decree is affirmed.
The cause will be remanded to the district court for the entry of a decree in harmony with the views here expressed; the costs of the appeal taxed one-half to Ilerminghausen & Ilerminghausen, and one-fourth each to Wilson Bullard and George Marshall. — Reversed.