Lippencott v. Wilson

Day, J. Plaintiffs claim that they are entitled to the rewards of superior diligence because of the commencement of an action in equity, to subject the equitable interest of S. O. Wilson in the property in controversy, to their judgment; whilst the defendants insist that they are entitled to preference because of their execution, levy and purchase. • In this state a judgment is a lien upon the equitable interest 1., . lien-of a debtor in real estate. Harrison v. Kramer et al., 3 Iowa, 543; Cook & Sargent v. Dillon et al., 9 Iowa, 407. It has also been held that, “ As between judgment creditors whose liens are of the same date, he who first takes the property in execution has the preference to be first paid out of its, proceeds. And this is the rule, whether the property be real or personal estate, or choses in action not subject to actual manual seizure, and which by our statute are taken and seized only by garnishment.” Cook & Sargent v. Dillon, 9 Iowa, 407, (413.) It is not possible to apcept these propositions, and to accede [428] to them their logical consequences, and at the same time to 2. - — : same date. deny to the Ellisons the prior and better right to the property in controversy, under the facts stipulated and admitted in argument. The case upon which appellants mainly rely, Bridgman & Co. v. McKissick, 15 Iowa, 260, bears no analogy to the present. In that case James McKissick had purchased real estate, and taken the title in the name of his wife, to defraud his creditors. The legal title of record was in his wife, and there was nothing to show that James McKissiek had any interest in the property. In fact, having procured the conveyance to be made to his wife for a fraudulent purpose, he had no interest that he could enforce as against her. Between them, the conveyance was absolute. Notwithstanding a sale of the husband’s interest under execution, yet the wife might have conveyed the property to an innocent purchaser, and cut out the rights acquired by the purchaser at sheriff’s sale. In order to prevent the alienation of the property, and to secure an interest therein having any tangible, character, or any real value, it was necessary to resort to a court of equity, to have the deed to the wife declared fraudulent, and the property made liable to the husband’s debts. Hence the court in that case very properly held that the party who first invoked the aid of the court, which alone could confer any substantial interest in the property, was entitled to priority on the ground of his superior diligence. And it is to be observed that the decision is expressly limited to cases of fraudulent conveyances, and has no application to the case where the equitable interest of an honest debtor is sought to be reached. In the case at bar the equitable interest of S. O. Wilson was apparent of record. " Austin could not convey it to an innocent purchaser, because of the record of the bond for a deed. Wilson could not assign the bond, so as to displace the judgment, for the judgment was a lien upon his equitable interest. The purchaser then at the sheriff’s sale could acquire a tangible interest in the property, an interest which no subsequent alienation could defeat. It was not necessary to resort to a court of equity to prevent the alienation of the property. • [429] The interest of the judgment defendant, Wilson, passed to the purchaser at the sheriff’s sale. All that remained, or was necessary for such purchaser to do, was to enforce the conveyance of the naked legal title from Austin. Now it does seem that, to hold this interest of the purchaser at the sheriff’s sale liable to be defeated at any time by the equitable action of a creditor to have the debtor’s interest subjected to his judgment, is simply to declare that the lien of a judgment creditor upon the equitable interest of the debtor iú real estate, lacks all the essential elements of a lien, and is one only in name. The judgment of the court below should be AFFIRMED.