Blaney v. Hanks

Weight, J. A judgment was obtained-before a justice of the peace in Henry county, against the defendant Hanks, on the 7th of January, 1856. A transcript thereof, certified by the justice, was filed in the office of the Clerk of the Lee District Court, July 26,1859, and a memorandum thereof duly entered on the judgment docket.. -An execution issued from the Henry District Court, directed to the Sheriff of Lee county (supposed to be based upon a transcript of the same judgment filed in that court, but'pf this.there is no record evidence before us), which was levied.upon the land in controversy on the 19th of December, 1859; Held, that the filing of the justice’s transcript .in'Lee .county created no lien upon the land, and that no lien was created until the date of the levy. . : Held, also, that before the lien of a justice’s judgment attaches upon lands lying in another county than that where it is rendered, such judgment must first be entered upon the records of the District Court and certified. as a judgment of that court for entry in the other.eounty, and not be certified in the first instance to the- county where the land lies, by the justice rendering ¡the--same; '-Code, §§2320-21,2485-89. '■ Complainant bought the land in controversy- under an execution against Hanks, levied on the- 19th of December, 1859. It seems that Hanks contracted for the same of his co-respondent Shelden, taking a bond for a deed, time being of the essence of the contract. He paid a partiof the purchase money, and Shelden made him a deed; the balance of the purchase money remaining unpaid. Hanks wished to surrender his deed and contract. Such negotiations took [403] place, that Shelden, in good faith, paid him back in property the purchase money received. Hanks surrendered the deed, and, as was supposed and understood, all claim and interest in the land. This was prior to the levy by the sheriff. The deed to Hanks had never been filed for record. Upon these facts complainant claims that the levy, sale, purchase and sheriff’s deed invested him with the title, for' the reason that the title of Hanks, once vested by the deed, could not be divested by its surrender and destruction, nor otherwise than by a reconveyance. The general rule seems to be well settled, that the canceling of a deed does not revest property which has once passed under it, by transmutation of possession. The evidence of the title is destroyed, but the title itself remains undisturbed. But can this rule be extended so far as to entitle complainant to relief in equity against respondent Shelden, who in good faith paid back to Hanks the consideration money already received, and procured the surrender, in like good faith, of this .evidence of. title? It is a question of equities, and though the deed may have performed its office as an instrument of conveyance to pass the title to •Hanks, which can only pass from him by some mode of conveyance, recognized by law, does it therefore follow that his creditor can in equity hold the property, under a levy made and a lien acquired subsequent to the destruction or cancellation ? For the reasons following we conclude that he cannot, and that the bill was properly dismissed in the court below. The lien of a judgment or a levy attaches not to the naked title, but to the interest of the debtor in the land. There is a clear distinction between the title and an interest in that title. Thus, A gives B a bond for a deed, agreeing to convey the property upon the payment of a fixed-amount. This amount being paid, A is still the holder of the legal title, but B owns the interest, and a lien would [404] attach to B’s interest but not to A’s. So A makes a mortgage to B to secure a sum of money. The mortgagee does not thereby acquire under our laws such an interest in the land as that a judgment against him would be a lien upon' it. The title and interest in that case would both be in A. So again, if A sells a tract of land to B by parol contract, and receives the purchase money, a title arises, and B can in equity compel a conveyance — A in that case being the holder of the title and B the beneficiary, or the party having the interest. In stating these propositions it is of course implied that there has been good faith, no intention to defraud creditors, and nothing done which should estop the parties as against third persons from claiming that the naked title was in one while the beneficial interest was in another. Applying, then, these rules, we find that while the naked title was not technically divested by the cancellation of the deed; that there was a virtual resale of the premises; that the purchase money was paid; that Hanks held the land ■after that time as a naked trustee without an interest, and ■that as Shelden, the beneficiary, could in equity enforce this contract against Hanks and compel its specific performance (Code, §§2410, 2411), so his equity is paramount to that of the creditor, who claims under Hanks, by virtue ■of a levy made after this equity arose and was complete. Affirmed.