33 Iowa 36 | Iowa | 1871
The plaintiff’s chain of title to the lands m controversy is as follows, to wit: George S. Hampton entered the same on the 18th day of February, 1854. At the March term, 1858, of the district court of Johnson county, James H. Gower, Bros. & Co. obtained judgment against said Hampton, for $411.20. -
February 4, 1860, execution issued on said judgment, directed to the sheriff of Warren county, and on the 18th day of February, 1860, a transcript of the judgment was filed in the office of the clerk of said county. On the 10th day of March, 1860, said execution was levied on the lands in question, and on the 1st of May following, they were sold in pursuance of said levy, to James H. Gower, Bros. & Co., for $125.00. On the 18th day of June, 1860, Gower Bros. & Co. assigned the certificate of purchase to James Otis.Gower, who obtained a sheriffs deed for the same on the 22d day of July, 1864, and caused the same to be duly filed for record on the day following. James Otis Gower, on the 31st day of December, 1864, made his last will, devising said lands to plaintiff, and on the 12th day of September, 1865, died in Johnson county. The will was duly probated, and on the 24th day of April, 1869, was filed for record in the office of the recorder of Warren county.
It was proved that James Otis Gower, in May, June and July, 1861, was engaged in recruiting a company for the 1st Iowa Cavalry; that he went into the United States service.
The defendant, Martin Doheney-, also claims title to the lands in controversy, through George S. Hampton, as follows, to wit: The said Hampton, as the agent of Miles White, and with money by him furnished, entered said lands in his own name in order that upon sale thereof he might convey the same without the delay of sending to White for a deed. On the 28th day of November, 1858, Hampton, having failed to make sale of the lands, executed and delivered to Miles White a deed for the same, which was filed for record on the 10th day of January, 1861. On the 31st day of August, 1868, White conveyed said lands to Doheney, by deed, which was duly filed for record September 8, 1868.
We have thus a case wherein the judgment debtor, holding the legal title of the lands in controversy under an implied trust, after judgment was obtained against him, but before a transcript of the judgment was filed in the county in which the lands were situated, conveyed the same to the cestui que trust, who failed to file the deed for record until eight months after the sheriff’s sale.
We are thus brought to consider in what manner the judgment creditor, purchasing at a sheriff’s sale, and those holding under him, are affected by equities of third persons or their claims under unrecorded deeds. It is well settled that a third person, who purchases at a sheriff’s sale, without notice of outstanding equities, is entitled to the same protection as any other purchaser without notice and for value. The rule, however, as to the judgment creditor
The deed was executed and filed for record more than four years before the defendant, Doheney, purchased from White. Hence, he stands in White’s place and with no better rights. If he had purchased before the sheriff'’s deed had been recorded, a different question would be presented.
The defendant, Doheney, is not in a position to claim the protection of a court of equity. His grantor failed for more than two years after the execution of the deed to him to have the same filed for record. An examination of the record would have discovered to Doheney, at the time of his purchase, that a sheriff’s deed had been upon record for four years, conveying the title of Hampton, under whom his grantor, White, claimed.
It is a wholesome rule of equity that, where one of two innocent persons must suffer, the loss will fall upon
The district court erred in dismissing the plaintiff’s petition.
Reversed.