65 Iowa 281 | Iowa | 1884
I. The question as to whether a judgment lien takes precedence of a vendor’s lien, where the judgment creditors have taken judgment in ignorance of the vendor’s lien, appears to be an open one in this state. It was held in Allen v. Loring, 34 Iowa, 499, that the lien of an attachment takes precedence of a vendor’s lien, where the attaching creditor acquired his lien without notice of the vendor’s lien; and in Gilman v. Dingeman, 49 Iowa, 311, there is an intimation that the same rule would apply in favor of the holder of a judgment lien. In Porter v. City of Dubuque, 20 Iowa, 442, it was said: “ The right to a lien in favor of a vendor, upon real estate sold to a vendee, is not based upon contract, nor is it properly an equitable mortgage; neither can it be regarded as a trust resulting to the vendor by reason of the vendee holding the estate with the purchase money unpaid. It is a simple equity raised and administered by courts of chancery.”
In Allen v. Loring the court, in speaking of the vendor’s lien, says: “It is never allowed to override or take priority of equities or rights of third persons which have attached in ignorance of such vendor’s lien.” In 3 Pom. Eq. Jur., section 1253, the author says: “Whether the grantor’s lien is or is not superior to that of subsequent judgments recovered against the grantee, is a question upon which the American decisions are in direct conflict. On principle, however, and especially when considered in connection with the universal system of registry, it seems to me clear that the subsequent judgment liens are entitled to precedence.” See, also, Johnson v. Cawthorn, 1 Dev. & B., 32; Roberts v. Rose, 2 Humph., 145; Gann v. Chester, 5 Yerg., 205; Gilman v.
It is said, however, that a contrary rule should be sustained as arising by implication from section 1940 of the Code. That section provides that “ no vendor’s lien for unpaid purchase money shall be recognized or enforced in any court of law or equity, after conveyance by the vendee, unless such lien is reserved by conveyance, mortgage, or other instrument, duly acknowledged and recorded, or unless such conveyance by the vendee is made after suit brought by the vendor, his executor or assignees, to enforce the lien.” The plaintiff’s position is that the statute implies that, in the absence of a conveyance, as in this case, the vendor’s lien shall be recognized and enforced, and that nothing short of a conveyance should be held even to impair the vendor’s right. But in our opinion the plaintiff’s position cannot be sustained. The object of the statute appears to be to provide that a grantee of the debtor shall take the land divested of the vendor’s lien, even though he takes with knowledge that the purchase money remains unpaid. Where a lien is not expressly reserved in writing, a grantee of the debtor has, under the statute, a right to assume that a vendor’s lien, as against such grantee, was waived. It is true that, where there is no conveyance, the lien may be enforced; but we see nothing in the statute which would justify us in holding that, where a lien has been acquired by others upon the land without notice of the vendor’s lien, the latter should not be enforced in subordination to the former.
II. But it is said that the judgment creditors have an exclusive right to resort to another fund, and should, under a familiar rule, be required to exhaust that fund before resorting to that upon which the plaintiff- relies. The fund to which it is said that the judgment creditors have an exclusive right arises as follows: The judgment debtor, John Ammon, was
III. The plaintiff appears to have been entitled to judgment for the amount of his claim against John Ammon and George W. Scott, who made default, and no reason is suggested why such judgment was not rendered. We think that in this the court erred. * The costs of the appeal will be taxed to the defendant debtors, Ammon and Scott.
MODIFIED AND AFFIRMED.