24 Iowa 298 | Iowa | 1868
Keys, as administrator of Catlin, was a necessary and proper party to the suit brought by Ellis to enforce his mechanic’s lien. The judgment in that case conclusively established the amount due to Ellis, and by the law, the lien, as we have seen, attached to the title held by Catlin at the time the work was commenced and material furnished» leaving out of view for the present the rights of purchasers subsequent- to the time the lien attached, it is very clear, from the foregoing, that the purchaser at the sale under the mechanic’s lien, judgment of Ellis v. Keys, Administrator, took the title to the property
It was held in The State v. Eads (15 Iowa, 114), that, after a sale and deed under a mechanic’s lien judgment, a-junior mortgagee, though not made a party to the suit, was concluded and could not redeem. See also the authorities there cited. The writer of this opinion, and Dillon, Ch J., without affirming or disaffirming the holding in that case, arrive at the same conclusion in this, as do Weight, J., and Beck, J., who are content to affirm and follow that case. The same result, to wit, of holding Keys, administrator of the mortgagee, or judgment creditor of the junior or subsequent grantee, concluded by the mechanic’s lien judgment, is reached and required by the special facts of this case.
It will be remembered, that Keys, administrator, was a party to the mechanic’s lien suit. It was his duty in that suit to assert and protect every right or claim which he had in or to the property, certainly if subordinate to the lien sought therein to be enforced, and the judgment in that case became conclusive and binding upon him as to every right which he did or might have asserted therein. A judgment was rendered against Keys, administrator in that suit, and the property was sold thereunder. He was thereby estopped from asserting any right to the property as against the judgment. It would be strange indeed, if Keys could issue execution upon a judgment in his favor, and sell the identical property which had just before been sold under execution against him, upon
We conclude, therefore, that Keys was the only : sary party to the mechanic’s lien foreclosure suit, andWati the purchaser at the sale, under the mechanic’s lien judgement, acquired a title to the property, free from any right in, or equity against it, in behalf of the defendant therein.
In this case, the wife, Margaret E. Shields, devised the real estate in controversy to her son Alexander; and, that being all her property, she made no provision for her husband, or her other children. The husband does not object to this will of his wife, but assents thereto, and waives all claim of dower in the real estate devised thereby. The defendant in this action claims, that, if the
If the one-third in fee (the dower right under our statute) was cast by operation of law, at the death of the wife, upon the husband, then, such title being thereby vested in the husband, the lien of any judgment against him would attach to such title, and he could not divest himself of it to the prejudice of his judgment creditors; nor, perhaps, could he do so voluntarily, to the prejudice «of any creditors, whether they had judgment liens or not.
From this it appears, that no absolute or positive legal rights in the property have as yet accrued to the defendant by virtue of his judgment, or the lien thereof. At most, it is but a supposed equity which would authorize the judgment creditor to control the election of his debtor, as to whether he would take under the will or the statute. Let us inquire as to the potency of that supposed equity.
The authorities cited by appellee’s counsel, in opposition to this view, do not sustain their position. The case of Tompkins v. Fonda (4 Paige’s Ch. 448) simply holds, that a widow’s dower may be subjected to the payment of her debts, and that, if she does not have it assigned, a court of equity, at the suit of creditors to subject it, will order it to be assigned, so that it may be reached by execution. The other cases cited are not as much to the point as this. They are, Lawrence v. Miller, 2 Com. 245, 254; Edmeston v. Lyde, 1 Paige’s Ch. 637; Stewart v. McMartin, 5 Barb. 438, 447.
It has never been held by this court, but that a married woman could, either at law or in equity, purchase and hold the title to real estate in this State, independently of her husband and regardless of whether she had a separate estate or not. And a reference to the cases above and the authorities therein referred to will abundantly show, that, in equity, and aside from any statute, a married woman is capable of acquiring and holding real property to her own separate use. See also and especially Darby v. Callaghan, 16 N. Y. 71, and Knapp v. Smith, 27 id. 277.
In this case, the married woman, Mrs. Margaret E. Shields, at the time of her purchase, had no separate estate; but she did have a son in the military service, from whom she expected to and did receive money, a part of which was applied toward the payment of the property in controversy. Now, if, as was held in Mitchell v. Sawyer (supra), a married woman may borrow money with which to purchase real property in her own name, relying upon receiving money from her father’s estate with which to repay it, and thereby acquire and hold a perfect title in her own separate right, which facts appear from the record in that case, why may not a married mother purchase upon credit, relying upon her son’s earnings with which to pay, and also acquire a good title ?
It seems to us, even in view of the principles of equity, aside from any statutory provisions, that Mrs. Margaret E. Shields was possessed of the capacity to acquire and hold the title to the property in controversy ; and that no advantage or right results to the defendants by reason of the fact that she was a married woman at the time she acquired the title. Of course, if the purchase was made by .the. husband for his own benefit, and the title taken in
The judgment of the District Court is reversed, and the injunction made perpetual.
Reversed.