221 N.W. 947 | Iowa | 1928
On July 18, 1925, the appellee Ferguson filed a petition, praying the partition of certain real estate. One Brewer was the owner of an undivided interest in the real estate in question, and was made a party defendant in said proceeding. On September 16, 1925, a decree was entered in said cause, and a referee appointed, with authority to sell said real estate. The decree further provided that "said referee ascertain the amount of any incumbrances or liens against the share of Ralph Brewer, and report the same to the court." Thereafter, to wit, on or about the 3d day of December, 1925, the appellant filed in said court a transcript of a judgment against Brewer. No formal notice of the filing of said transcript of judgment was served upon the referee, and there is conflict in the evidence regarding the contention that oral notice of the filing of said transcript was given to the attorney for the plaintiff in the partition action. On or about the 20th day of October, 1925, the referee sold a portion of said real estate, and on said date filed his report of said sale. On the 19th day of November, 1925, the referee filed a report of distribution to the owners of said real estate, showing the amount of the share of said Brewer in said proceeds. On the 28th day of November, 1925, the referee filed an amendment to said report of distribution, and stated that, through inadvertence, he had failed to report incumbrances against the share of said Brewer, and reported two incumbrances, — one a personal tax, and the other a judgment, — both of which, we take it from the record, were of record against the said Brewer at the time the decree in partition was entered. The referee prayed in said report that he be authorized to pay the said incumbrances and pay to the said Brewer the balance of his share remaining in the hands of the *1287 referee. On the 26th day of May, 1926, the appellant filed his objections to the distribution made to said Brewer, and insisted that the referee had failed to report the existence of the appellant's judgment against the said Brewer, and prayed that the court refuse to approve of the disbursements of said referee until an accounting was made to appellant for the full amount of the share of the said Brewer sufficient to satisfy the appellant's judgment. The referee filed a resistance to the appellant's objections to his report, and, among other things, alleged that, on December 1, 1925, he had been garnished on an execution in a case wherein the said Brewer was a defendant, and had paid to the sheriff the share of said Brewer under said writ of garnishment.
The arguments have taken a wide range; but, in its last analysis, the appeal presents but one question for our determination, and that is whether or not the appellant, who filed his transcript of judgment after the decree in partition had been rendered, and after the appointment of the referee, and after sale of the real estate, did, by said act alone, create a lien at that time upon the interest of his debtor in the partition suit, which became a lien either against the real estate or the proceeds of the sale of the same in the hands of the referee which required the referee, without actual notice of said judgment, to report the same to the court and to pay the appellant in making distribution of the share that would otherwise go to appellant's judgment debtor. It was not essential that the appellant be made a party defendant in the partition proceeding. He had neither an actual nor apparent nor contingent interest in said property at the time. Section 12320, Code of 1924, is as follows:
"Before making any order of sale or partition, the court may refer to the clerk or a referee to report the nature and amount of incumbrances by mortgage, judgment, or otherwise upon any portion of the property."
The appellant relies upon this section, and upon the order of the court in the decree made in pursuance of this section. The referee did report the outstanding incumbrances against the share of appellant's debtor, Brewer, that were in existence at the time that the decree of partition was rendered. The effect of the appellant's contention is that the referee was required to *1288
watch the proper records for any other incumbrances or liens that might be created against the share of the said Brewer until the report of the referee for distribution of the proceeds of the sale was filed. The ultimate result of the appellant's contention would be that the duty would rest upon the referee to examine all of the proper records, even after the sale, and at least until the date of the filing of his report of distribution, and report to the court all apparent liens or incumbrances that were then of record against the share of any distributee in the partition suit. Appellant places reliance on the case of Aplington v. Nash,
Other questions argued are unimportant, in view of our conclusion on the main proposition relied on by appellant. The decree of the district court was correct, and it must be, and is, — Affirmed.
STEVENS, C.J., and EVANS, KINDIG, and WAGNER, JJ., concur. *1290