55 Iowa 265 | Iowa | 1880
The defendant Myers at once began making preparations for the removal of said building from lot sixteen to lot fifteen, but before he had accomplished his purpose, on the 28th day of May, 1878, he was restrained from removing said building by a writ of injunction issued in an action brought against him by the intervenor, the petition alleging that'he was the holder of the certificate of purchase aforesaid, and that by such removal great waste and damage would be done to said property to his pecuniary detriment.
On the night of the 31st- of May, 1878, one Isaac Case, pretending to have purchased said building and leased lot fifteen of defendant Myers, completed the removal of the building to lot fifteen. Foster thereupon amended his petition in said action against Myers, making Case a party defendant, alleging the removal of said building as the result of a fraudulent combination on the part of said Myers and Case for the purpose of evading the writ of injunction theretofore issued and asking that defendants be restrained from making any further transfer of said property, or creating any charge thereon, and that an account be taken of the waste and damage committed,
On the 3d day of July, 1879, the plaintiff commenced the present action against Myers and wife to recover the amount of the notes and foreclose the mortgage. The defendants answered, alleging that J. M. Phillips had falsely represented that said building was, at the time of sale, free from liens and incumbrances when Foster had a lien thereon by virtue of the tax sale, and setting up the injunction proceedings aforesaid then pending, and alleging that said notes were not transferred to plaintiff until long after the commencement of said Foster’s action, and long after the maturity of the firs! note, and that plaintiff at the time of said transfer had notice of the matters so alleged.
On the 2d day of September, 1879, Foster recovered a judgment in said action against Myers and Case for $440 damages and costs, and procured a decree perpetuating the injunction and declaring the judgment to be a special lien upon the building in controversy.
The defendants thereupon, upon the 9th day of September, 1879, filed a supplemental answer, setting up the recovery of this judgment by Foster, and alleging that the lien thereof is paramount to plaintiff’s mortgage as against the building, and that by reason thereof the consideration of said notes and mortgage' has wholly failed.
On the 6th day of January, 1880, Foster filed his petition of intervention, alleging his purchase of lot sixteen at tax sale, Ms acquisition of the treasurer’s deed therefor, the sale of said building by J. M. Phillips to defendant Myers for the
The court rendered judgment against Myers and foreclosed the mortgage, but adjudged the intervenor’s lien on said building under and by virtue of said judgment and decree to be senior and paramount to plaintiff’s lien thereon under and by virtue of the mortgage.
The defendant Myers does not appeal from the judgment against him. The question involved is solely between the plaintiff and the intervenor, and relates to the priority of liens against the building in controversy. It cannot be questioned that Poster in virtue of his treasurer’s certificate acquired a lien upon the lot and the buildings thereon. It is clear also, that for the removal of the building, depreciating the value of the property, he should have an adequate remedy. We need not determine whether he might have followed the building itself and procured a restoration of it to the lot from which it had been removed. If he possessed any such remedy he waived it by electing to treat the building as j>ermanently severed from
II. It is claimed that the evidence shows that J. M. Phillips procured the notes and mortgage by fraud; that the plaintiff is not shown to be a bona fide purchaser for value, and that for that reason he should not be allowed precedence over the judgment rendered in favor of the intervenor. We need not inquire whether the notes and mortgage were originally obtained by fraud. They were assigned to the plaintiff before maturity. He gave therefor two bonds of the nominal value of about $600. No question as to their value seems' to have been raised in the court below. In the state of the record we must presume them to possess some value. The court erred in decreeing the lien of the intervenor to be superior to that of the plaintiff under his mortgage.
Reversed.