15 Iowa 260 | Iowa | 1863
Lead Opinion
James and Ellen McKissick having fully admitted the facts stated in the bill, may be regarded as withdrawn from the contest, and it then remains to be determined, which of the two creditors has the preferable equity, or is entitled to the prior satisfaction out of the property in question, under the facts disclosed by the
Now, in this attitude of the case, we are to determine which of these parties is entitled to priority. If, in adjusting their rights in the premises, we limit ourselves to the provisions of chapter 127 of the Code aforesaid, the question must be settled in favor of the plaintiffs, because they first instituted their equitable action agreeably to its requirements, sued out and levied their attachment, and secured their lien; showing thereby superior legal diligence, which entitles them to preference as the reward of their vigilance.
Again, if we decide the question according to the weight and number of authorities in cases involving the same principle or rule of practice, we would have to rule in favor of the plaintiffs, because it has been long and repeatedly laid down, not only that a mere equity or secret hidden trust, like the one at bar, is not available at law by sale on execution, but that the creditor, whether senior or
Plausible as this proposition would seem, it is nevertheless to be received at least with some qualifications. In the first place, the General Assembly of this State has legislated on this subject, and expressly provided for the method of reaching the debtor’s-equities, by an equitable action and attachment, whereby a lien is created in favor of the party instituting such proceedings. The implication is apparent that, in the judgment of the law-giving power, the lien which the creditor obtains by yirtue of his judgment upon some interest or equities other than those which amount to a legal right is not available at law. The facts of this case will vindicate the soundness of their conclusion, as well as illustrate the non-availability at law of such a lien.
Whilst, then, under the statutes of this State, a judgment at law may be a lien in some sense upon a secret trust, or upon equitable rights,' yet it is not in the sense to charge or affect a subsequent Iona fide purchaser, without notice. It is a lien only effectual in equity; and when a creditor loiters by the way, and neglects to make the same available by a prompt resort to his equitable action, he ought not to complain of hardship if a more diligent creditor gains a preferable equity over him by doing an act which at once stops alienation, saves and brings the property within the control of a court of equity, that it may be subjected to the payment of debts, for non constat, that the delaying creditor, by his laches, would not have lost the property by a legal transfer thereof.
In short, we suppose the statute, in this State, has made no change in the rule which rewards vigilance, but has rather confirmed that rule by the provisions found in chapter 127 of the Revision of 1860, above referred to; and that, while it may be competent for a creditor, even in a case of this description, to resort first to his execution at law, sell and buy, and then to his bill in chancery, yet, that he adopts this course at his peril, first in losing the property in the meantime by a valid sale, second in losing his priority by another creditor, who, having exhausted his remedy at law by the return of an execution unsatisfied, shall be the first to pursue the property in equity, and thereby gain a precedence for the payment of his claim.
In making this disposition of the case before us, we would have it understood that our reasoning upon the
Affirmed.
Concurrence Opinion
I concur in the conclusion that this judgment ought to be affirmed, but not in the reasoning used in the foregoing opinion.