Joyce v. Perry, 111 Iowa 567

Joyce v. Perry

111 Iowa 567

| Iowa | 1900

Sherwin, J.

1 That the conveyance of this land from Isabella A. and W. M. Harrison to Kirk L. Williams was fraudulent cannot be questioned. The defendant George W. Bowen knew this fact when he took the title, and the defendant J. A. F. Brunnier successfully prosecuted an action to set aside the conveyance to Williams on the ground of fraud, so that he had full notice of the character of that transaction. No claim can therefore be made that any of Perry’s grantors were without actual knowledge of the fraud in the conveyance to Williams. The judgment which the plaintiff held against W. M. and Isabella A'. Harrison was obtained after the transfer of the title, and hence was not a lien upon the land. Howland v. Knox, 59 Iowa, 46. But it may be made a lien thereon by an action in equity, provided the land would have been subject thereto if the title had remained in the debtors.

2 One, of the points made by the appellants is that this land was the homestead of the debtors, and consequently the conveyance cannot be set aside as fraudulent. It is true, this court has so held where the homestead alone was involved, but it has never applied this rule to the conveyance of a body of land out of which the homestead might be selected. No homestead had been selected in this case, and but forty acres could in any event be reserved therefor, and the balance of the land was subject to the payment of debts; and all the decree granted was that the judgment be a lien upon the real estate superior to that of the defendants.

We are fully satisfied from the evidence that the defendant F. O. Perry had actual knowledge before his pur*570chase that the conveyance from the Harrisons to Williams was fraudulent. He was not, therefore, a bona fide purchaser, as claimed, and is not entitled to protection as such. Jones v. Heatherington, 45 Iowa, 681; Williamson v. Wachenheim 58 Iowa, 277.

4 The defendant J. A. E. Brunnier contends that he has liens upon said land which are superior to plaintiff’s, but he did not so plead in the district court, and we can grant him no relief here not asked there. Walker v. Walker, 93 Iowa, 681; Williamson v. Wach 69 Iowa, 710. The judgment of the district court is affirmed.