Twogood v. Franklin

| Iowa | Jun 11, 1869

Dillon, Ch. J.

It is an express provision of the statute (Rev. § 3541) that “property acquired by a bona fide purchaser under a judgment subsequently reversed shall not be affected by such reversal.” By the preceding section (3540) it is enacted that “ If by the decision of the Supreme Court, the appellant becomes entitled to a restoration of any part of the money or property taken from him by means of such judgment or order, either the Supreme Court or District Court may direct execution or writ of restitution to issue for the purpose of restoring to such appellant his property or the value thereof.” It is argued by the appellants that Conklin was a “ bona fide purchaser ” within the meaning of the section of the statute first above quoted. If so, that then he acquired title and could convey it to the Messrs. Morgan, even though at the time of such conveyance the judgment had been reversed and the plaintiff therein afterward failed to recover any thing.

, ••-Conklin, was the attorney of Franklin and knew at the ■time of his purchase at the sheriff’s sale that an appeal had before that time been taken by Twogood to the Supreme ..Court from the very judgment under which the sheriff was selling, and that such appeal was then pending. His payment consisted in crediting an account he held against his client, the plaintiff in the judgment under which the sale was being made. Not questioning the fairness of the transaction so far as Conklin is concerned, it is our opinion that he can, under such circumstances, no more be considered “ a bona fide purchaser,” within the meaning of the statute, than can Franklin with respect to the parcels purchased by him.

Eespecting the present question, I am of opinion that to constitute “ a bona fide purchaser ” of land, one must have purchased without knowledge, at least actual knowledge, of an appeal, and must have parted with his money, or altered his situation, on the strength of such purchase.

The court unite in the proposition which is broad enough to cover the case at bar, viz.: that a purchase of land at a sheriff’s sale by the plaintiff in execution or his attorney, with actual knowledge of a depending appeal, is at the peril of the purchaser, and the party or his attorney thus buying is not, within the meaning of the statute, a bona fide purchaser.

Conklin’s vendees having purchased after the judgment had been reversed, stand in no better situation than their vendor.

Affirmed.