Suiter v. Turner

’WRIGHT, J. We are clearly of the opinion that it was the intention of Turner, when he made the deed of June 8th, 1843, and executed the written agreement of the same date with Cullom, to defraud his creditors. We further incline to the opinion that Cullom participated in this fraudulent design, and if the controversy was now between complainant and said Turner and Cullom, we should have but little difficulty in concluding that complainant’s title was paramount, and in further declaring said deed of the 8th of June 1843, fraudulent and void. It is claimed however by the other respondents, that whatever the fraud as between J. Turner and Cullom, they are innocent of any such purpose and are protected, therefore, in the enjoyment of the interest and title subsequently acquired. Their condition of innocence is denied by complainant; and this is the first, and indeed we may say material, issue presented' for our consideration. I. It is claimed by complainant that the fact of Turners’ remaining in possession after the sale to Cullom, and all the time up to the commencement of this action, of which the other respondents had full knowledge, so taints the transac — 523 — tion with fraud, as to vitiate the subsequently acquired title of John Campbell, and that of his grantee Tacy Turner. The doctrine of Twyne’s Case, (8 Coke 80) adopted in some of the states, is applicable to sales of chattels, and we do not understand that any of the cases go so far as to apply the same rule to a sale of realty. The reason of the distinction it seems to us is most manifest. In the case of chattels, possession is prima facie evidence of ownership. Upon this evidence of ownership, in the absence of some provision in the registry laws of a state, creditors and subsequent purchasers without notice have a right to rely; otherwise there would be no protection against secret or collusive transfers. In this country while possession of lands may be treated for some purposes, and is regarded as the lowest evidence of title, yet the public look not to the possession but to the prop-' er records, to obtain proofs of title to such property. The creditor does this, so does the subsequent purchaser, soj ■does every person instituting an inquiry as to the condition! of the title to a particular tract of land. The possession may I with perfect consistency be in one person and the title inj another. And to say that possession of the realty by the vendor after sale is per se either conclusive or presumptive evidence of fraud would be to abolish the distinction existing, known and acknowledged on all hands, between personal and real property, and to lose sight of the different methods adopted in this State and others, for evidencing the title to the two kinds of property. Without doing more we cite 4 Mason C. C. R. 312; United States v. Hoe et al., 3 Cranch 73. That such continuing possession, however, might properly be considered, in connection with other circumstances, in determining whether there was fraud in fact in this particular case, is equally clear. And how much weight it should or might hare, would of course depend upon the circumstances under which it was held, the agreement by which it was reserved, the purpose and object of the vendor and vendee in providing for it, and many other facts not material to be now mentioned. — 524 — II. If the possession of Turner then was not sucb evidence of fraud as per se to give notice of tbe fraudulent purpose between him and his grantee, Cullom, we next inquire whether the agreement made on the same day can aid complainant’s case. ■ And here we are met by the inquiry whether the other respondents had notice or knowledge of such instrument. All knowledge of its existence is denied most positively and unqualifiedly by the Campbells. This knowledge is neither admitted or denied by Tacy Turner. The Camp-bells then by their answers deny all knowledge. There is no evidence in the record to show notice in fact, and the recording was not constructive notice. It was not one of the instruments, the recording of which under the laws then in force, (Laws of 1843, chapter 54, sections 29, 30 and 31,) imparts notice of its contents to other persons. It was not acknowledged as required by the statute, and as a consequence the recording imparted no notice to purchasers or mortgagees. We need not therefore inquire whether this instrument made such a reservation of an interest in the grantor, as made the transaction fraudulent and void on its face. Whatever its effect between Turner and Cullom, it cannot vitiate respondents, title without evidence of notice .of its contents. And in this connection we may remark that while possession is notice, at least so far as to put the ven-dee upon inquiry, to ascertain by what right the occupant holds, this rule is not extended so far as to give notice of the defects existing in his title, nor yet of the defects in the title paramount to the person in possession. In this case both parties claim under Turner. In the absence of such fraud as shall affect the title of Campbell, Turner stands after his conveyance to Cullom, as a simple mortgagee. Inquiry on Campbell’s part at those places where he was only required to go would have developed this fact and no more. An examination of the proper records would, have shown only the deed to Cullom and mortgage to secure the purchase money. This is all the law presumes he ascertained. If he in fact had notice of the other instrument this should be proved — 525 — and not left to presumption. He bad notice then that Turner was a mortgagee in possession. But this was no notice to Mm nor could any inquiry that he was bound to make give him notice that there were other defects in Cul-lom’s title, nor yet that Turner had any title as mortgagee or otherwise which was liable to Suiter’s execution. IH. Aside from the evidence deduced from the terms of the written agreement, and the fact that Turner continued in possession, we do not think there is sufficient evidence to bring the fraudulent purpose and intention of Turner and Cullom'to John or A. Campbell. Of the written agreement as we have seen they had no notice. The continuing possession was a circumstance, which, when taken in connection with other facts might prove fraud. In itself it was not necessarily inconsistent with an honest purpose. The proof of other facts is not sufficient in our judgment to bring knowledge of their fraudulent purpose home to the other parties. If, therefore, John Campbell acquired a good title, this must prevail and enure to the benefit of Tacy Turner. And he had such title as we have seen for anything that occurred between Joseph Turner and Cullom, and it only remains to inquire, therefore, whether the objections urged against the legal proceedings under which he and Mrs. Turner hold, are all or any of them tenable. IY. And first it is suggested that the court rendering the decree against Cullom and in favor of A. Campbell, had no jurisdiction. From the exhibits found in the record, these facts appear: The record entry (the decree in the case of Campbell v. Cullom,) recites, “ And now comes the plaintiff in his own proper person, and it appearing to the satisfaction of the court that the said plaintiff hath caused a notice of the pendency of this petition, containing a brief statement of the object and prayer thereof, to be published in the Davenport Casette, a newspaper published in the town of Davenport in said county of Scott, for six consecutive weeks from the 22d day of February, 1849, and the said defendant being called comes not, he makes default. It is therefore considered — 526 — by the court, &c.” And then follows a decree of foreclosure in regular form, with an order for a special fi.fa. after the expiration of seventy days from the date of said decree. The court calendar then kept by the judge shows the cause docketed, with a memorandum in the hand-writing of the judge, that “ defendant was defaulted and a decree of foreclosure.” The sheriff’s deed to John Campbell recites or refers to the decree, and the fact that a fi.fa. was issued, and the sale made in accordance therewith. A copy from the “judgment docket” shows the amount and date of the decree, with costs (including printers’ fees); the nature of the writ, with a description of the land to be sold, corresponding with that contained in the mortgage, and now in controversy. And then follows a certificate of the clerk to the effect that “ the original papers on file” (in said cause, naming it,) “can not after diligent search he found in his office.” Upon the authority of Cooper v. Sunderland, 3 Iowa 114; Morrow v. Weed, 4 Iowa 77; Wade v. Carpenter, Ib. 361; Frazier v. Steenrod, 7 Ib. 339; MoGahen v. Carr, 6 Ib. 331; Gaylord v. Scarff, Ib. 179, we are clearly of the opinion that the jurisdiction sufficiently appears. There is no personal judgment; merely an order to sell the thing; the property mortgaged. The court acting was one of general jurisdiction. Every presumption obtains'in favor of the proceedings of such courts as well as of their power to act — their jurisdiction. This presumption, necessary, reasonable and just as it is, would sustain the proceedings, aside from the recital in the decree, and the other facts which place the matter beyond all controversy. But in this connection it is urged that Turner should have been made a defendant to the proceedings to foreclose the mortgage. The law then in force provided that the mortgagee might file his petition in the office of the clerk of the District Court against the mortgagor, and the actual occupant of the real estate, setting forth the substance of the mortgage deed, praying judgment for the debt, the foreclosure .of the equity of redemption, and a sale of the property to sat — 527 — isfy the amount found due. Acts of 1843, p. 442, section 4. Will a failure to make such occupant a party invalidate a title otherwise regular ? Wo think not. It might have the effect of letting him in to redeem upon a bill filed for that purpose; or he might possibly complain and attack the decree for any collusion between the mortgagor and mortgagee, whereby he was injured. And so in various methods he might be entitled to relief, but we do not think a failure to make him a party is such a fatal defect or irregularity as to render invalid or void all the proceedings against the mortgagor. He might not be bound by them, but this is quite a different thing from holding that the proceedings are void, because he .was not made a party. Veach v. Schaup et al, 3 Iowa 194. Turner does not complain nor ask relief in this case on this or any other ground. Whether Suiter as the purchaser at the sheriff's sale in November, 1844, would have the same right as Turner we need not determine, as we do not understand that he asks any such relief or predicates his case upon any such ground. V. We are finally brought to the question whether Tacy Turner can hold the property under the purchase from John Campbell, against the claim of Suiter. And here we feel compelled to differ widely from counsel for the complainant in his construction of the testimony. We are not satisfied by any means that she paid for the land with the money of the husband, or that to which he was legally or equitably entitled. It is so averred in the bill we know, but it is positively denied in the answer, and the proof falls far short of overcoming such denials. Turner, from the evidence, is a man imbecile in mind, and physically unable to perform much labor; and this was his condition for years prior to the purchase from Campbell. During this time the wife and children superintended the entire business, and his labor and means aided but little, if any, in their support. The proof is that the wife paid for the land. There is some proof, it is true, that she used money made by her own labor on the farm, but there is just -as much that she used means received by — 528 — ber from her father’s estate. That the husband, ever had this latter money in his possession, or exercised any control over it, or that he had anything to do with, or knowledge of, this purchase there is no proof whatever. In courts of equity it is conceded that a married woman is capable of taking real, as well as personal property to her own separate and exclusive use, and of holding and enjoying it independently of her husband. Story’s Eq. Jur. section 1876, and see section 1887. And as to the doctrine under the Code and for this State see Blake v. Blake, 7 Iowa 46; Chenvete et al. v. Mason, 4 G. Greene 231; McCrory v. Foster et al, 1 Iowa 271. Decree affirmed.