Edmonds v. . Wood

Seawell, J. 1. Was the judgment creditor Edmonds or his assignee, the Industrial Bank, bound by the judgment in the partition proceeding to which the judgment debtor John L. Wood was a party? The jurisdiction of the court to entertain the partitioning proceeding and proceed to judgment therein either by allotment of shares or by sale for division of the proceeds has not been challenged. Therefore, the question in so. far as is necessary for a decision of this case may be answered by quotations from authorities which correctly state the law as it obtains here and elsewhere: “A judgment lien upon the undivided interest of a tenant in common is subordinate to the right of the cotenants to enforce partition; and, when it is made, the judgment lien is transferred to the portion assigned to the debtor in severalty, or to his share in the proceeds of sale . . . “If a sale of the undivided property is made for the purpose, the purchaser takes his title freed and discharged from such subordinate encumbrance on the share of the judgment debtor, and the creditor is remitted to his debtor’s share of the proceeds of the sale, even though the judgment creditor is not a party to the proceedings for partition.” Thompson on Eeal Property (1940 Ed.), section 1989. “In case of partition, the lien attaches to the specific land allotted to the judgment debtor, or in case of sale for the purposes of partition, to the fund obtained thereby.” Tiffany, Eeal Property, sec. 1583. “The interest of a debtor in land, though charged with the lien of a judgment, may be subject to sale pursuant to the superior rights of *122 others as in ease of property forming part of ail estate or subject to partition. Under such circumstances, a judgment lien attaches to the proceeds to the extent of the debtor’s interest therein or the surplus remaining after prior claims have been satisfied.” Freeman on Judgments, 5th Ed., page 1981. See, also, 40 Am. Jur., p. 110, sec. 130; 47 C. J., p. 617, sec. 940. The judgment in the partitioning proceeding cannot be collaterally attacked except for fraud or want of jurisdiction in the court, rendering it void. Neither is suggested in the record. If, as appellees contend, liens were erroneously declared against the judgment debtor’s share which injuriously affected the judgment creditor’s general lien under C. S., 614 — and this we do not decide — it would constitute a mere irregularity, which could be corrected only by a motion in that cause. Under C. S., 3217, the judgment creditor is given the right upon his own initiative to have partition so that the moiety upon which the lien of his judgment attaches may be ascertained. No doubt he would be allowed to intervene in a partitioning proceeding brought by a cotenant, his judgment debtor, and diligence might require it if his rights appeared to be imperiled. But upon sale of the land, the proceeds are actually or constructively in the custody of the court and execution is not available. Even though the money had not yet been paid into court, the judgment creditor cannot arrest the proceeding or prevent the consummation of the order by a simple resort to execution. Freeman on Judgments, op. cit. supra. But the appellees are confronted with a more serious barrier growing out of the transaction through which the judgment debtor purportedly procured the transfer of the Edmonds judgment to the Industrial Bank. The evidence discloses that Wood borrowed from the Industrial Bank $650.00, and made it a note in that amount, to which there were guar' antors. He took the proceeds of the loan, and, by agreement with the bank, paid a large portion of it to Mr. McMullan, attorney of record in the Edmonds case, and had an assignment of the judgment made to the bank as collateral security for his loan. The money was Wood’s and he was still bound for it, and the agreement that he should buy in the judgment and have it assigned to the bank did not make it the money of the bank. This put the judgment debtor In the peculiar situation of attempting to capitalize on his own indebtedness. We view this transaction and this payment by the judgment debtor as, in legal effect, satisfying the judgment. The execution should be withdrawn upon the motion of the intervener, and the judgment of the court below is, therefore, Reversed.