40 Iowa 425 | Iowa | 1875
Plaintiffs claim that they are entitled to the rewards of superior diligence because of the commencement of an action in equity, to subject the equitable interest of S. O. Wilson in the property in controversy, to their judgment; whilst the defendants insist that they are entitled to preference because of their execution, levy and purchase.
• In this state a judgment is a lien upon the equitable interest
It has also been held that, “ As between judgment creditors whose liens are of the same date, he who first takes the property in execution has the preference to be first paid out of its, proceeds. And this is the rule, whether the property be real or personal estate, or choses in action not subject to actual manual seizure, and which by our statute are taken and seized only by garnishment.” Cook & Sargent v. Dillon, 9 Iowa, 407, (413.)
It is not possible to apcept these propositions, and to accede
Notwithstanding a sale of the husband’s interest under execution, yet the wife might have conveyed the property to an innocent purchaser, and cut out the rights acquired by the purchaser at sheriff’s sale. In order to prevent the alienation of the property, and to secure an interest therein having any tangible, character, or any real value, it was necessary to resort to a court of equity, to have the deed to the wife declared fraudulent, and the property made liable to the husband’s debts.
Hence the court in that case very properly held that the party who first invoked the aid of the court, which alone could confer any substantial interest in the property, was entitled to priority on the ground of his superior diligence. And it is to be observed that the decision is expressly limited to cases of fraudulent conveyances, and has no application to the case where the equitable interest of an honest debtor is sought to be reached. In the case at bar the equitable interest of S. O. Wilson was apparent of record.
" Austin could not convey it to an innocent purchaser, because of the record of the bond for a deed. Wilson could not assign the bond, so as to displace the judgment, for the judgment was a lien upon his equitable interest. The purchaser then at the sheriff’s sale could acquire a tangible interest in the property, an interest which no subsequent alienation could defeat. It was not necessary to resort to a court of equity to prevent the alienation of the property. •
The judgment of the court below should be
AFFIRMED.