Chase v. Parker

| Iowa | Dec 5, 1862

Wright, J.

No point is made as to tbe method of raising tbe questions here involved. Under tbe demurrer, tbe court below held, that Chase was not entitled to tbe money in tbe bands of tbe trustee (Fletcher), but that tbe claim of Parker (tbe vendee and purchaser under tbe second trust deed) was superior. And this ruling, we think, was correct

It will be observed that tbe appellee does not rest her claim alone upon her purchase from J. V. Parker. If she did, then, as tbe judgment of appellant was a lien upon tbe premises covered by tbe trust deeds, prior to her purchase, it would, in equity, attach to tbe surplus, and tbe levy thereon would give a priority or paramount lien to any claim of appellee. By such purchase, she stood in no better position than her vendee. If tbe property bad remained in bis bands, tbe surplus would be liable to appellant’s levy. And appellee, by her deed from tbe debtor, took tbe property subject to tbe same liabilities. Tbe trust deed to "Wilcox, however, was a prior lien to appellant’s judgments. And when appellee purchased under that, she took the property divested of such judgment liens, and subject only to the trust deed to Jacoby. It is true, that but for the intervening deed to Williams, for the benefit of Wilcox, and the rights arising from the sale thereunder, the judgment lien would have been continued against the surplus in the hands of the trustee, and could, in equity, have been enforced. But by her purchase under such second trust deed, the appellee took the land divested of any lien arising from the judgment, for this was a lien upon the right of redemption, and nothing more, and as this lien was extinguished by the sale, the judgment creditor could claim nothing from a sale made under a prior mortgage or trust deed.'

The inquiry is, does this money belong to J. Y. Parker, the judgment debtor of Chase, and'does the garnishee hold-it as his money, or does it belong to L. A. Parker, who indisputably had the whole title to the land, subject to the Jacoby trust deed. This money is the representative of the land, or of the right of the grantor to redeem the same. And suppose one-half or three-fourths of the land had been sold to satisfy the first lien, would there be any doubt but that appellee would take the other half or fourth, freed from the lien of appellant’s judgment? If so, is not her right equally clear to the remaining proceeds, which represent such land?

Affirmed,