89 Iowa 150 | Iowa | 1893
On the seventeenth day of February, 1883, for the stated consideration of thirty-nine thousand, one hundred and twenty-five dollars, Aaron and William Hicks executed to Archie Douglass a warranty deed, which purported to convey to him. about eight hundred and thirty-five acres of land in Monroe county, including that in controversy in this action, which is described as follows: “The east half of the northeast quarter and southwest quarter of the northeast quarter of section thirty-two, and the west half of the northwest quarter of section thirty-three, all in township seventy-three north, of range sixteen west.” On the same day Douglass executed to his grantors a mortgage on the land thus conveyed for the alleged purpose of securing the payment of promissory notes to the amount of thirty-eight thousand, five hundred dollars. Four days later "the plaintiff commenced two actions, aided by attachments. The record submitted to us is somewhat confused, but we conclude from it, and from admissions of ■ counsel, that one of them was against A. and W. Hicks, and that one was against T. S. Thorp, as principal, and Aaron and William Hicks as sureties. The attach
' On the sixteenth day of April, 1887, an undivided one half of the land in controversy was sold to the plaintiff under a general execution issued by virtue of his first judgment, as the property of William Hicks, for the sum of one thousand, six hundred and fifty-seven dollars and fifty-seven cents. On the sixteenth day of the next month, an undivided one half of the land was sold as the property of William Hicks, under an execution issued for the satisfaction of a judgment in favor of Thomas Trimble, rendered on the twentieth day of February, 1883, and against William and Aaron Hicks. A. Dorothy, who held a judgment against the same defendants, redeemed from the Trimble sale, the plaintiff redeemed from Dorothy, and in June, 1888, the sheriff executed to the plaintiff a deed for William Hicks’ interest in the land. On the eleventh day of June, 1887, an undivided one half of the land was sold to the plaintiff for the sum of one thousand, four hundred dollars. It was sold as the property of Aaron Hicks, under an execution issued by virtue of the second judgment in favor of the plaintiff. He claims that redemption from that sale was made by one Tinsley, the owner of a junior judgment lien, and that the plaintiff, as the owner of part of another judgment rendered in favor of one Shaw, redeemed from Tinsley. In June, 1888, the sheriff executed to the plaintiff a deed for Aaron Hicks’ share of the land. The plaintiff claims to be the owner of the land, and asks that the mistakes of 'the petition and decree in the first of the two actions commenced in November, 1883, be corrected, that his title be quieted, and that he have judg
The defendants deny that the conveyance to Douglass was ever set aside as to the land in controversy, and insist that he is now the owner of it. They contend that for that reason the sale of William Hicks’ share, made to satisfy the judgment of April 17, 1883, conveyed no interest. They contend that Douglass redeemed from the plaintiff after he redeemed from Dorothy, and that the sheriff was, for that reason as well as others, without authority to execute a sheriff’s deed for William Hicks’ share. The defendants claim in regard to the alleged redemption- by and from Tinsley, that it was fraudulent and unauthorized and without effect; that Douglass redeemed of the plaintiff Aaron Hicks’ share of the southwest quarter of the northeast quarter and the southeast quarter of the northeast quarter of section 32 by a timely payment into court of the amount required for that purpose. They further claim that Douglass is the owner of three judgments, which are liens on the land paramount to that claimed by the plaintiff, one of which was rendered in favor of A. J. Casaday, one in favor of J. R. Wallace, and one in favor of Alexander Ramsey.
The district court decreed that Douglass properly redeemed William Hicks’ undivided one half of the south half of the northeast quarter, and the northeast quarter of the northeast quarter of section 32, in township 73, of range 16, from the Trimble sale, and that the plaintiff had no interest therein, but was entitled to the redemption money.' The court also decreed that Douglass duly redeemed Aaron Hicks’ half of the south half of the.northeast quarter of section 32 from the plaintiff’s sale of June 11, 1887, excepting from the right acquired by the plaintiff by virtue of- a redemption under a part of the Shaw judgment, which the court
• It is the well settled rule in this state, that the levy of an attachment upon real estate which the attachment debtor has conveyed to another to defraud his creditors, unless followed by supplemental proceedings, creates no lien upon the property so attached. It is true that the interest of a debtor in real property subject to execution, whether legal or equitable, may be seized and sold at the suit of a creditor. But that rule does not apply to a case where the debtor has divested himself of all right to and interest in the property by an absolute conveyance to another. When that is done, he ceases to have any interest in the property which a court would enforce at his- suit. Such a conveyance would be good, excepting as against creditors, and the levy of an attachment upon the property conveyed, without more, would not operate to create a lien. Clark v. Raymond, 84 Iowa, 251; Boyle v. Maroney, 73 Iowa, 70, 71; Howland v. Knox, 59 Iowa, 46. See, also, Lippencott v. Wilson, 40 Iowa, 425, 428.
In Bridgman v. McKissick, 15 Iowa, 260, 261, it appeared that McKissick had purchased certain real estate, the title to which he took in the name of his wife for the purpose of defrauding his creditors. A creditor named Bone commenced an action, aided by attachment, against McKissick, obtained a judgment therein in May, 1861, and in August the land was sold to him at sheriff’s sale made by virtue of his judgment. In July, 1861, Bridgman & Company obtained a judgment against McKissick, and commenced an action in the nature of a creditor’s bill to subject the land, which had been conveyed to the debtor’s wife, to the payment of their judgment. Bone was made a party defendant. This court held that, although his attachment and
• It is said that in cases of this kind the fraudulent grantee is a trustee for the creditors, and Taylor v. Branscombe, 74 Iowa, 534, 536, is cited as an authority to that effect. It is true that it was therein said that “in the case of a conveyance of real estate to defraud a creditor the grantee is regarded by the law as holding the title in trust for the grantor, to be applied in payment for his debts. As to the creditor, the law regards the debtor as a ceskd que trust, having an interest in the trust property which may be attached in any civil action.” But that language must be construed in harmony with the rules we have stated. It was used in an equitable action, aided by attachment, in which a judgment against the debtor and the setting aside of a fraudulent conveyance were demanded, and applies only to eases when proper equitable proceedings are had to subject the property fraudulently conveyed to the payment of claims against the debtor.
It is said, however, that the property in controversy was subjected to the plaintiff’s claim by the decree in the equitable action; that the description of the land contained in the papers in that action was sufficient after rejecting the erroneous part. The peti
It is said that the erroneous description was inserted in the papers and decree by mistake; that all parties in interest knew what land was intended; that those parties are now in court; and that the mistake may now be corrected. The evidence shows that the error was the result of a mistake, and that the parties knew what land was intended to be reached by the equitable action; but the fact remains that when William Hicks’ share of the land in controversy was sold the plaintiff had no lien upon it, and no right to sell it. Douglass was entitled to protect his interest in the land by discharging the liens thereon, and had the right to redeem from the Trimble sale. Fordyce v. Hicks, 76 Iowa, 41, 43. He was under no obligation to redeem from the plaintiff, for the reasons stated.. Whether he would have made such redemption had it been necessary to protect his title, we can not now determine, and would not be justified in depriving him of the right of electing what course to pursue, which
So much of the decree of the district court as adjudged that Douglass had rightly redeemed William Hicks’ share of the south half of the northeast quarter, and the northeast quarter of the northeast quarter of section 32, and had a perfect title- and right of possession thereto, is affirmed. In other respects, so much of the judgment as is involved in this appeal is REVERSED.