76 Iowa 41 | Iowa | 1888
Lead Opinion
— In 1882 the defendants William
The second ground upon which appellee claims the defendant is not entitled to the relief asked in the cross-petition is that the liens obtained by Cassady, Wallace and Ramsay cannot be enforced against the defendant, because he holds both the legal title to the land and the
Reversed.
Dissenting Opinion
(dissenting.) I do not concur in the conclusion reached by the majority in this case. The judgments which were purchased by and assigned to defendant Douglass are not liens upon the real estate. It was said in Howland v. Knox, 59 Iowa, 46, that “the defendant in a judgment has no such interest in real estate, equitable or otherwise, which he has conveyed away to defraud his creditors, as is the subject of a lien in favor of the judgment creditor.” According to the holding in that case the lien is created, not by the judgment, but by the decree subjecting the property to its satisfaction. And to the same effect is Boyle v. Maroney, 73 Iowa, 70. True, the institution of-the equitable action creates a Us pendens; but that is notice to the world merely of the claim that is made, and a purchaser during the pendency of the litigation takes the property subject to whatever rights may be established by the judgment. If, then, the lien is created by the decree subjecting the property to the satisfaction of the judgment, it seems to me impossible that Douglass should acquire any rights as to the land by his purchase of the judgment; for, while the equitable action brought to subject the property to the satisfaction has not been dismissed, the parties by that transaction have rendered it impossible that it should even be prosecuted to judgment. . As the judgment plaintiffs have parted with all interest in the judgments, they have no interest to be protected, and clearly Douglass cannot prosecute the action against himself to subject the property in his own hands to the satisfaction of the judgments which he now owns. Smith v. Grimes, cited by the majority, is not in point. In that case Grimes, the fraudulent grantee, bought in a mortgage and judgment which