155 Iowa 181 | Iowa | 1912
Intervener, Charles Floto, signed a statement and affidavit authorizing a judgment against himself and in favor of Theo. II. Brown for the balance due upon a joint and several promissory note made by Floto and one Robert Barrington, executed in the year 1891. Upon this confession, judgment was rendered in favor of Brown and • against Floto in the district court of Cass county, Iowa, on March 7, 1895, for the sum of $673.87 and costs. The judgment record shows the following assignment of this judgment: “October 30, 1895, for value received, an assignment of the within judgment is hereby made to Robert Barrington. Theo. H. Brown. By C. S. Patterson, His Attorney.” The Robert Barrington referred to in this assignment is now deceased, and the defendant, Rea, is ad
Plaintiff, Eitz, and intervener, Floto, his wife joining, answered the cross-petition, and averred that: “Between the date of said confession and the entry of said judgment, the indebtedness upon which it was based had been paid to the said Theo. H. Brown, except a balance of $81.44; that subsequent to the rendition of said judgment this defendant, Charles Floto, paid said balance due by an assignment of a judgment in1 his favor of' $69.75 against one Louis Besser, and by giving credit for $11.65 due from the said Brown to this defendant, Floto, on a meat bill on the 8th day of April, 1895.” They denied the fraudulent character of the conveyance and further pleaded that an execution issued on the original judgment in March, 1895, by direction of one Chas. Patterson, an attorney for Brown, and that “on said date he settled with the said Patterson, attorney for plaintiff, the balance due on said debt by the assignment of said Besser judgment and by giving credit with a bill of $11.65 due from the said Theo. PL Brown, as aforesaid; the said Charles S. Patterson at the time agreeing to satisfy and cancel said judgment of record.” In an amendment to his answer Eitz pleaded that the deed from Floto and wife to him of the property in controversy was made as security by reason of his having signed a note with Floto to the Bank of Griswold for the sum of $2,000, and that this note has never been paid. He also averred that the conveyance was in good faith, and without knowl
Such were the issues in the case, and, upon the testimony adduced, the trial court found for the plaintiff and intervener. The issues, as will be seen, are somewhat complicated, and the case was tried in such a manner that it is difficult to say from competent testimony just what the facts are. Brown and Barrington are both dead, and the testimony of Chas. Patterson, who made the assignment of the judgment to Barrington, was taken in the form' of a deposition, part of which only was offered in evidence. Over defendant’s objections plaintiff and intervener were permitted to read in evidence a letter from Patterson, in which he claimed to be the owner of the judgment in virtue of an assignment from Brown. This letter seems to have been, written March 31, 1905. Betters from some attorneys in Atlantic who represented the defendant to Brown, and Brown’s answers thereto, were also offered in evidence, and, if these various letters are to be considered, there seems to have been a misunderstanding between Brown and his attorney, Patterson, and between Patterson and Barrington regarding the ownership of the judgment upon which the execution was issued. Patterson claims that Barrington in his lifetime assigned the judgment to him, and Brown indicates in his letters that the judgment was assigned by him to Barrington, and that Barrington did not assign to Patterson. It is conceded that through a levy upon a judgment held by Floto against one Besser the sum of $69.79 was secured about March 15, 1895, to apply upon the judgment in suit, and it also appears without serious dispute that plaintiff took the deed to the
In Stahl v. Roost, 34 Iowa, 475, it is said: “Our statute makes a judgment a lien upon real estate within the county for ten years from its date (Revision, section 4109) ; but a judgment continues in force, and is not barred by the statute of limitations until the lapse of twenty years (section 2740). And it is also provided that execution may issue at any time before the judgment is barred (section 3246). While, in an ordinary judgment, the lien ceases after ten years, yet the right to issue execution continues for twenty years; but an execution issued after the ten years would only operate (as at common law) as a lien from the date of the levy. The sale under the execution would be as effectual to pass the title of the judgment defendant as if it had been issued before the expiration of the ten years; the chief difference being that in the one case it would only pass the title that the execution defendants had at the date of the levy of execution or after; while in the other case it would pass the title they held at the date of, or subsequent to the judgment. But, further, we have held that in a mortgage foreclosure judgment the lien of the mortgage continues till the judgment is satisfied or barred. Hendershott v. Ping, 24 Iowa, 134. So that in either case, and for the two reasons, the title of the judgment defendant passed, to the plaintiff by the sale.” In Lakin’s case, supra, we said: “It is claimed to be unreasonable that a party should have the right to an execution and levy on the land, and not the right to sell under the levy. Speaking only with regard to the respective lienholders, the party has the same right to one as the other. If he seeks the advantages of his lien, he should not defer action until it is too late to perfect his rights thereunder. The law fixes the period, and provides the means for rendering his lien effectual. If he neglects action until too late to complete his work witliin the perib'd, then
The decree seems to be correct, and it is affirmed.