Smith v. Ingles, 2 Or. 43

Smith v. Ingles

2 Or. 43 | Or. | 1862

Prim, J.

The legal title to the lots in question was in "W. S. and B. E. Ingles, who were minor sons of D. O. Ingles. The facts proven and admitted show that D. C. Ingles made the purchase, advanced the money, and caused the conveyance to be made to them for his own use and benefit, and with intent to place said property beyond the reach of his creditors.

The main question to be decided here is, whether. the judgment at law of Burns against D. C. Ingles became a lien on these lots, while there was nothing of record to show that he had any interest in them whatever. In other words, is a judgment at law a lien on an equitable title in land, and can such a title be sold on an executionat law, while the legal title is clearly in another % If so, Smith was without remedy for Bums’ judgment existed prior to his mortgage, and Burns *45has since reduced his hen, “ if he had any,” to an absolute ownership, by purchase under execution. The question seems plain enough. The Statute, page 119, section 62, on this subject provides, in substance, “ that a judgment shall be a lien on real property of the judgment debtor, not exempt from execution, owned by him in the county at the time of docketing the judgment,” or that which he may afterwards require. The statute intended to make a judgment a lien on the legal title of real property, and not on some hidden equitable title, which could only be brought to light and made available by the extraordinary powers and proceedings of a court of equity. (Roads v. Symmes, 1 Ohio, 314.)

Then D. C. Ingles had no such title in these lots as a judgment at law could reach, consequently, Burns had no lien, and took nothing by his purchase, but stands on the same footing with other judgment creditors. His remedy was in equity and not at law.

Smith parted with his money in good faith on the credit of those lots. It was obtained and used to pay off the note and mortgage given for a part of the purchase money, and was obtained by the fraudulent acts and representations of D. O. Ingles, whom a court of equity, under all the circumstances, is bound to treat as the equitable owner of these lots.

Then we think that the court below was correct in arriving at the conclusion that this mortgage, although fraudulent and void, gave plaintiff such a hen on said lots as could be enforced in equityand that whatever rights Bums had in the premises they were subject thereto.

Decree is affirmed.

Note. — As to the extent of the effect of the lien of a judgment see present Statute Code, page 311, section 379, reading thus: “ All property, or right, or interest therein of the judgment debtor, shall be liable to execution” except statury exemptions. S. C. reported, 1869.