22 Wash. 415 | Wash. | 1900
The opinion of the court was delivered by
This is an action brought by appellant against respondents to quiet title to certain town lots in
It is conceded that in this state the judgment is a lien on the real, and not the apparent, interest of the debtor;
“An execution creditor is not a bona fide purchaser. He parts with no consideration, on account of the goods, and he takes no greater interest than his debtor has.”
And the matter under discussion in that case did not tend to modify the principle announced.
In Elwood v. Stewart, 5 Wash. 736 (32 Pac. 735, 1000), where the subject of the controversy was real estate, the same doctrine was announced; and, while the question of notice was involved, the opinion on petition for rehearing shows conclusively the general doctrine sought to be established.
In Benney v. Clein, 15 Wash. 581 (46 Pac. 1037), while it is true that the question of the effect of the vacation of a judgment was before the court, the question under discussion here was also directly involved; and in answer to respondents’ contention that they should be protected by a condition in the order of the court, when granting the motion to vacate the judgment, that the title of
“ The respondents in this action are not in a position to avail themselves of this provision of the order. As execution plaintiffs they were neither ‘innocent purchasers’ nor ‘bona fide incumbrancers.’ ”
In Dawson v. McCarty, 21 Wash. 314 (57 Pac. 816), it was held that:
“ Since a judgment lien on lands binds only the interest which the debtor actually has therein, an unrecorded mortgage takes precedence over a subsequent judgment.”
In that case the question was discussed at length, and the announcement made that:
“ The decided weight of authority seems to be that the term ‘bona fide purchasers’ in the recording act, does not include a judgment creditor.”
The theory, of course, is that he has not parted with any consideration, and hence his relation to the property in dispute is, in substance, the same as it was before the purchase, which seems to be a reasonable distinction between the judgment debtor and a stranger to the transaction who pays his money, as an independent transaction, for the property. We think it was the latter class of purchasers which the legislature intended to protect.
Affirmed.
GfoBDOsr, O. J., and Bullebton and Keavis, JJ., concur.
Akvdebs, J., not sitting.