11 Kan. 471 | Kan. | 1873
This was an action brought by Charles F. Koester against William H. Clutter and wife to foreclose a certain mortgage. Francis Kirkwood and Allen Reed were afterward made parties defendant, on their own motion, on the ground that they each claimed to have some interest in the mortgaged property. The mortgaged property consisted of a certain town lot in the town of Frankfort, Marshall county. All the parties claimed under one Perry Hutchinson, to whom the lot originally belonged. Hutchinson by a parol contract agreed to convey this lot to Jeremiah L. Heasley if Heasley would build a house thereon. Heasley built the house, and therefore by operation of law Heasley became the equitable owner of that lot. While Heasley was thus the equitable owner of the lot Kirkwood obtained a judgment against him for $385 and costs. Afterward an execution was issued on said judgment, and the sheriff levied the same on said lot as the property of said Heasley. Afterward Hutchinson, with the consent of Heasley, sold and conveyed said lot by deed of general warranty to said Clutter, taking three negotiable promissory notes from Clutter to himself in payment therefor, and a mortgage on the property from Clutter and his wife to himself to secure the payment of said notes. Clutter and wife immediately took possession of the property, and have been in quiet and peaceable possession of the same ever since. Clutter and wife, and Kirkwood, were all represented in the court below, by the same counsel, and Clutter and wife admitted in their answer that they had notice at the time of their purchase of the rights and claims of Kirkwood, and were therefore not bona fide purchasers of said lot. This admission is of course binding upon themselves, but it is not binding upon Koester or Reed, or any one else. Whether Clutter and wife had in fact any notice of Kirkwood’s claims, or whether Clutter was in fact a bona fide purchaser without notice, is not shown by the record. Hutchinson transferred one of said notes before due to Koester, and another of said
We think it will now be obvious that the only question for this court to decide is whether Koester and Reed had a ri¿ht to have said mortgaged property sold to satisfy their said judgments on the notes. Or in other words, was the mortgage-lien of Koester and Reed on said mortgaged property stronger than the judgment and execution-lien of Kirkwood (provided he had any such lien) on the equitable interest of Heasley in and to said property? Whose lien was prior in right ? For the purposes of this case we shall assume that Kirkwood, by virtue of his said judgment against Heasley, obtained a judgment-lien upon the equitable estate of Heasley in and to'said town lot. (Civil code, §419; Gen. Stat., 999, ch. 104, §1, clause, 8; Kiser v. Sawyer, 4 Kas., 503.) And for the purposes of this case we shall also assume that the levy made by said sheriff on said property was a valid levy. (Civil code, § 443, and sections and reference as above.) The sheriff in making said levy in form, levied upon the lot, upon the whole estate, and not upon the mere equitable interest of Heasley. It is not supposed that a sheriff can levy an ordinary execution or order of sale in the ordinary way upon a mere equity. An entirely different procedure must be followed to subject a mere equity to the payment of debts. (Civil code, § 481, et seq.) To levy upon land, the whole estate, is one thing; to levy upon an equitable interest therein, is another. But for the purposes of this case we shall assume that a sheriff may levy upon the land, the whole estate, and sell it, whatever may be
As has been before stated, Koester and Reed were innocent and bona fide purchasers without notice, and before the notes were due. Hence it would be natural to suppose that they purchased the notes and mortgage freed from all equities. It is a general rule of law and equity that the holder of the legal title to real or personal property, even where the title
The judgment of the court below is affirmed.