70 Iowa 296 | Iowa | 1886
Collins was not a party to the proceedings for the sale of the land. His judgment was rendered in the life-time of decedent; and it is conceded that it was a lien on the real estate. The question to be determined is, was it necessary that he should file his judgment as a claim against the estate in order to preserve his lien ?
Section 3092 of the Code is as follows: “Whenajudg
By section 2882 of the Code, judgments in courts of record are liens upon real estate for the period of ten years; and, if there be no provision of the law qualifying this section so that where a judgment debtor dies the lien ceases before the lapse of ten years, the plaintiff’s judgment in this case must still be a valid lien. Appellee claims that the amendment of the statute by the interpolation of the Itali-cised words requires the judgment creditor to file his claim against the estate the same as an unsecured creditor, and that resort to the lien can only be had after exhausting the personal estate. We fail to see that the amendment makes any difference in the rights of the judgment creditor. Indeed, it appears to us that the rights of the parties are not changed by the amendment. The judgment against an executor mentioned in the statute means a judgment enforcing a lien upon real estate; because a judgment against an executor on an unsecured claim, if such a thing can be, is no lien upon the real estate. Now, if, as we have seen, under the Revision of 1860, it was unnecessary for the plaintiff in a judgment against an executor to file the same as a claim against the estate, and he had the right to enforce his lien without
Counsel for appellee claim that the case of Bayless v. Powers, 62 Iowa, 601, is decisive of the question, and that, following that case, the decree in this case must be affirmed; and it appears that the court below was of that opinion. In that case a judgment creditor, who obtained his judgment before the death of the judgment debtor, sought to establish his claim against the estate in the ordinary way by filing and proof. It was held that, as the claim was not filed within the twelve months allowed by statute for filing and proving claims, so far as the judgment could be regarded as a claim to be paid out of the personal estate, it should be deemed as belonging to the fourth class, and be filed and proved within one year. It is true, it is said in the opinion in that case that section 3092 of the Code “implies that such judgment must be paid out of the personal estate in the first instance;” but that question was not involved in the case; and all that was necessary to determine on the facts was that, where a judgment is sought to be established as a claim in the ordinary
‘ Surely, it is not necessary for a judgment creditor, before enforcing his lien, to go through the useless formality of filing and proving his j udgment against an estate, where, as in the case at bar, there is no personal estate to subject to its payment, and, upon his failure to do so, lose the lien of a judgment by a bar which is not recognized by the statute. It is true that all the debts of an estate, secured and unsecured, should be paid from the proceeds of the personal property. This is the policy of the law; for the administrator has no right to appropriate real estate for that purpose unless absolutely necessary. And when a judgment creditor seeks to enforce his lien upon the real estate, it is the right and duty of the administrator to pay it from the proceeds of the personal assets in his hands; but that a judgment creditor loses his lien and his judgment because he does not file and prove his claim within one year, in our opinion finds no more warrant under the laws now in force than under the Revision of 1860 as construed by the cases above cited.
Reverses.