Rappleye v. International Bank

Mr. Justice Sheldon delivered the opinion of the Court: lío point is made in the argument for appellant as to the correctness of the finding of the court below in regard to the facts, that the trust deed was made with the intent to delay, hinder or defraud the creditors of Sonne, and that the bank by filing its original bill discovered the fraudulent character of the trust deed and caused it to be released. And from an examination of the evidence we see no reason to question the propriety of the finding in this respect. It is the rule of priority the court adopted and applied as arising upon the above facts, which is insisted upon as being erroneous. It is a well established principle, when a creditor has, through the instrumentality of a court of equity, sought out and discovered the property of his debtor, which he had before been unable to discover and seize upon by execution at law, that he becomes entitled to a preference over other creditors to have his judgment first satisfied. Gordon v. Lowell, 21 Me. 257. In Edmeston v. Lyde, 1 Paige, 639, in reference to this subject of gaining a priority, the court say: " The creditor whose legal diligence has pursued the property into this court is entitled to a preference as the reward of his vigilance.” "If the creditor whose execution is first returned unsatisfied, pursues the race of legal diligence by the commencement of a suit here, he will obtain the reward of his vigilance; but if he abandons the pursuit, or lingers on the way before he has obtained a specific lien, he has no right to complain if another credited obtains a preference by superior vigilance.” In Smith v. Lind, 29 Ill. 30, this court said: " There is certainly some merit in searching records, discovering property, investigating title, and procuring sale of it, and all at the creditor’s costs and expense, by which he ought to profit. * * * Both these judgment creditors were in a position to use diligence—one only encountered the labor and expense. To him should be the reward.” In Lyon v. Robbins, 46 Ill. 279, a junior judgment creditor caused to be set aside an absolute conveyance made before either judgment, on the ground of its being fraudulent as against creditors, and the question was, whether the junior judgment creditor thereby gained a priority over the senior judgment creditor. The court say: "The deed of Miller (judgment debtor) to Williams was not void, but only voidable. It vested the title in the grantee, subject to be divested by the action of creditors. It was valid as against Miller, and a conveyance by Williams to an innocent purchaser, for a valuable consideration, would have been valid as against all persons. There was then, at the time these judgments were rendered, no estate in Miller to which their liens attached in the order of their rendition, and although the judgment' of plaintiffs in error was junior in date to that of defendants, yet the former having set aside the title of Williams, subjected the premises to sale, and obtained a master’s deed before the defendants made any move in this direction, it would now be very inequitable to permit the defendants to come forward and sweep away the fruits of their superior diligence.” We do not see why this case of Lyon v. Robbins does not decide the present case. It is not denied that appellant’s judgment was a lien on the equity of redemption of Sonne in the premises, but this was a lien on the land, subject to the incumbrance of the trust deed. Pahlman v. Shumway, 24 Ill. 127. The lien, however, according to this case of Lyon v. Robbins, did not extend to the interest or estate conveyed by the trust deed, notwithstanding the trust deed was fraudulent and void as to Sonne’s creditors. The circumstance of the fraudulent conveyance in the former case being an absolute conveyance, and in the present case a trust deed, does not vary the application here of the principle there declared. The difference in that respect in the two cases is, that in the former the grantor parted with the whole of his interest in the premises, leaving no part upon which the lien of a judgment could attach; and in the latter, the grantor parted with only a portion of his interest, leaving the remainder, the equity of redemption, for the lien of the judgment to attach upon. There was then, according to the case of Lyon v. Robbins, at the time of the rendition of appellant’s judgment, and of the recording of the certificate of levy of appellee, no estate in Sonne, except the equity of redemption, to which these liens attached in the order of their accruing. The trust deed was not void, but only voidable. It vested the estate thereby conveyed in Hoffman for the benefit of Jaeger, subject to be divested by creditors. It was valid as against Sonne. Had the deed of trust been foreclosed, and the property bought by a bona fide purchaser, he would have acquired a valid title as against both appellant and appellee. Appellee has prevented that from being done. It has caused, by its suit brought, the trust deed to be released. The holder of the other judgment did nothing whatever in that direction. He was content in having his execution returned no part satisfied and no property found. The equity of redemption, seemingly, was not regarded as of sufficient value to have it sold under execution, as the judgment creditors rested without having it done. Although appellant might have proceeded and have avoided the trust deed, and have subjected the estate thereby conveyed to the satisfaction of his judgment, or have had the lots sold on execution, he did not choose to assume that burden or expense. Appellee then assumed the -undertaking of avoiding the trust deed, and succeeded in effecting the removal of the incumbrance, encountering all the expense and labor thereof. It is through this proceeding of appellee that this estate conveyed by the trust deed has been secured for application to the satisfaction of these judgments. Appellant now comes forward to appropriate to himself all the benefit. It does not seem just. And we think, under the equitable doctrine which courts apply in analogous cases, and the decision in Lyon v. Robbins, appellee is fairly entitled to a preference as a reward of its diligence. It. is the legal maxim, vigilantibus non dormientibus jura subveniunt. Appellant makes the point that there is a difference in the phraseology of the statute of 1845, the one in force when Lyon v. Robbins was decided, as to the lien of a judgment on real estate, and the one on that subject passed in 1872, and since in force, which should distinguish that case from the one at bar. The difference insisted on is, that the latter statute makes a judgment a lien on all equitable interests in lands, while the former, with only a limited exception not applying to such a case as this, made the judgment a lien on only the legal estate. And it is assumed that-when a debtor makes a conveyance of land in fraud of creditors, there yet remains in him an equitable estate in the land; and it is contended that there is now, under the present statute, a judgment lien on this equitable estate which there was not under the previous statute. It is a mistaken notion that after the making of a fraudulent conveyance as to creditors, there remains in the fraudulent grantor an equitable estate in the land conveyed. If this were so, he could sell and convey to another such estate. But the fraudulent conveyance is good as against the grantor, and as respects himself vests all his interest in the land, equitable as well as legal, in the grantee. The deed is voidable by creditors, and the estate conveyed is subject to be divested by their action. There is no such distinction as that of equitable and legal estate applicable to the subject. When the creditor proceeds in a court of equity it is not upon the idea of subjecting an equitable estate only which the debtor has in the land, but it is to avoid the fraudulent conveyance, which is voidable by him. It is no more an equitable than a legal estate which he subjects to the satisfaction of his debt. Were there, after a conveyance in fraud of creditors, an equitable estate in the land in the debtor, upon which the lien of a judgment would attach, then, while the judgment subsisted, there would not be the capability in the fraudulent grantee to sell and convey an indefeasible title in the land to a bona fide purchaser for good consideration. But of this power there is no doubt. This difference then between the two statutes, in the respect of the latter making a judgment a lien on equitable estates in land, does not affect the applicability of the decision in Lyon v. Robbins to the present case. The decree will be affirmed. Decree affirmed.