Jones v. Jones

| Iowa | Jun 5, 1862

Wright, J;

If tbe cause was before us to review alone tbe action of tbe court below on the motion to dissolve tbe injunction, filed before answer, we should feel constrained to reverse it. Complainant states in his bill that be purchased the lands levied upon and about to be sold, from one of tbe defendants in execution, paid therefor a valuable consideration, had his deed recorded before the rendition of tbe judgment, that in said deed there was a mistake, that instead of describing the lands purchased, ahd intended to be conveyed, (a parcel in section 33,) it described it as in sect. 13, same Township and Bange; and that tbe defendants in tbe execution, (Campbell, Jones & Co. and Bryant,) bad each and jointly sufficient unincumbered property, to satisfy the judgment. Now, if these facts-were true, (and they were to be so taken, as the case stood at the time of hearing said motion,) then the injunction should have been continued. If the firm had sufficient property from which to satisfy the judgment, then complainant occu.pied such a position as that he could in equity compel the plaintiff in execution to resort to that before selling the land bought by him in good faith and for a valuable consideration, before the lien of the judgment attached. ■

But before this motion was heard, there was an answer, replication and rejoinder filed, and the record shows that the cause was “submitted upon the pleadings.” That the court found that complainant’s bill was not sustained, and that thereupon the injunction was dissolved and bill dismissed, as to Brown and Spaulding, (the sheriff) The case is before us, therefore, in this attitude, and we are to determine whether, from the pleadings, complainant is entitled to relief.

Jones and wife, the grantors of complainant, by their answer admit, while Brown and Spaulding deny, every material allegation of the bill. The replication takes issue upon some new matter set up in the answer, and the rejoinder does the same as to like matter contained in the replication. The pleadings subsequent to the answer, however, are of no importance, and need not be further noticed.

Complainant insists that he was entitled to relief under the case made by the pleadings: First: Because the judgment was against the firm of Campbell, Jones & Co., and that before the individual property of one member of the firm could be levied upon and sold, some step, by scire facias, or otherwise, should have been taken to make it liable. To this position, it seems to us, there are several answers. In the first place, it does not appear, by any clear averment, that the firm was sued or the judgment recovered against them in their partnership name. In the next place, there is nothing in the bill raising any such issue. The fact that such proceedings “ to show cause” had not been taken and determined, is not negatived. For anything that appears, such steps were taken, and the plaintiff may have pursued the very course required of him-by law. And finally, it may be doubted whether complainant occupies such a position as to entitle him to make the objection. If the owner of the individual property, the defendant in the execution could, quere, if the same right extends to one holding under such debtor.

Second: It is urged that the partnership, and each member thereof, had property from which the judgment could have been made. This is clearly and explicitly denied in the answer of Brown and Spaulding, however. And while the issue thus stood, without proof to sustain the affirmative allegation, the chancellor was bound to find it against complainant.

Third: That a default was entered against the said Brown and Spaulding, that their answer was subsequently filed, without leave of court, and should not, therefore, be con. sidered. No steps were taken, however, to strike this answer from the files. On the contrary, it appears affirmatively that issue was joined upon it, and that the cause was submitted upon the pleadings. It is too late now, therefore, for complainant to insist that they were in default.

Fourth: It is insisted that upon the pleadings the injunc- . tion should have been made perpetual. The rule contended for is, that the lien of a judgment creditor upon the lands of his debtor is subject to all the equities which existed in favor of third persons against such lands at the time of the recovery; that a court of chancery will protect the equitable rights of third persons, against the legal liens of a judgment and will limit such liens to the actual interest which the judgment debtor had in the estate. Granted the rule, the question still remains, have we a case to which it applies ? For, if complainant has no equitable right to the land levied upon, then the lien of the judgment is. as to him, unlimited. This equity is denied by the answer, for while it is admitted that a deed was made, it is denied that it was intended to convey any other lands than those therein described. Is this answer overcome? Certainly not, unless the answer of the grantor, Jones, is evidence against respondent, Brown.

We are not of the opinion, however, that this case comes within the exceptions to the general rule, that the answer of one defendant in chancery cannot be read in evidence against his co-defendant. There is certainly no joint interest between the vendor, Jones, and the creditor, Brown, in the transaction. Nor does Brown claim through Jones, within the meaning of the exception as stated by Mr. Greenleaf, 1 Ev., § 178. Nor was there any fraud, collusion, or combination, between them. Indeed, Brown claims not under or through his co-defendant, Jones, but against him. True, if he takes under his execution and sale, he acquires the title of the debtor, but he does not succeed to his estate, the right of Jones does not devolve upon him, there is no such priority of estate, as that he should be bound by what Jones may state in his answer. And especially is this so, when the answer, (treated as an admission or declaration,) was made long after the party answering has parted with his title. Decree,

Affirmed.