Keith v. Losier

Granger J. 1. Lxs pendens: notice: priority of liens. I. We should first determine the effect, as to the defendants, of the decree entered June 14,1887, in the suit of Edson Keith & Co. v. Riefe and wife and Thompson. The argument makes it important to have in mind that Edson Keith & Co. commenced two suits, one at law in Floyd county, against H. C. Reife, upon its claim, aided by attachment, and levied on the land in question December, 1886. Final judgment was entered in the suit March 29, 1887, on the claim, and sustaining the attachment. The suit in equity was commenced January 13, 1887, in Franklin county, where the land is situated, with Riefe and wife and Thompson as defendants, and the relief sought was that the land be subjected to the payment of the debt being prosecuted to judgment in the law action. After the entry of judgment in the law action the petition in the equity action was so amended as to recite the fact of the judgment in the law action, and to ask that the attachment in that action be decreed, in the equity action, a lien on the land, and that the plaintiffs have a special execution. Such a decree was entered, subject to a prior lien decreed in favor of the defendant Thompson, on his cross action, for an unpaid balance on the purchase price for the land. The contentions of counsel render dates quite important. On-the same day that Edson, Keith & Co. commenced its equity action in Franklin county, January 13, 1887, Johanna Cohn commenced her law action, aided by attachment, in Floyd county, and on the next day — 655 — levied on the land. The judgment in the law action of Edson Keith & Co. was entered March 29, 1887. and the same was pleaded in the equity suit May 18, 1887. The appellants urge that the equity suit was not “pending to subject the land in controversy until the filing of their amendment to their petition on the eighteenth of May, 1887.” It is said that “an amendment can not be made the basis of a decree having effect before the filing thereof,” and some authorities are cited. It seems to us the proposition does not admit of a doubt, and we think that prior to the amendment the action was not pending to subject the land to the payment of a judgment, nor did it purport to be such. Tt was, however, an action to subject the land to the payment of a claim pending for judgment. It is also urged that a creditor, before judgment, can not maintain a suit to set aside a fraudulent conveyance ; and, besides authorities cited claimed to support such a rule, we are cited to Code, section 3150: “At any time after the rendition of a judgment, an action by equitable proceedings may be brought to subject any property, money, rights, credits or interest therein, belonging to the defendant, to the satisfaction of such a judgment.” Without an intimation that we are in accord with such a view, we may say that, if the view is sustained, we do not see how it affects the validity of the decree assailed, for the reason that nothing in any ease, or the statute quoted, can be construed as holding that a decree entered upon such a state of facts would not be a perfectly valid decree, when it became final. Conceding that in that case, upon proper issues made, the defendants would have been entitled to a decree, still it was but an erroneous judgment of the court, in a matter of which, both as to persons and the subject, it had complete jurisdiction; and, upon undoubted and unbroken authority, such a decree is as valid and binding when it becomes — 656 — final as if not erroneous. We now speak of a decree as between the parties to it. The appellants contend that, even if the decree, as between the parties, is valid, yet, as to other parties claiming rights, it is not so. The rights of the parties to this suit depend upon the priority of their liens. If the defendant had a lien prior to that of the plaintiff, the decree in that suit would not bind her, for she was not a party thereto. But, if she had no lien before the commencement of the equity action, she could not, by a levy thereafter, create a lien, or acquire an interest against that, of the plaintiff in the action. Such is the language and spirit of Code,, section 2628. The plaintiff, or Edson Keith & Co., by attachment, levied on the land December 28, 1886. January 13, 1887, it commenced its suit to subject the attached property to the payment of the debt. The defendant has no pretense of a lien prior to January 14, 1887, when the attachment was levied. The lien of the plaintiff is as conclusive as if Riefe and wife had on the thirteenth day of January, 1887, in good faith, made their mortgage to create one; and, because of the pendency of the suit, third persons were required to take notice of it. Code, section 2628. 2. action to quiet ingeciaüufict:’ sourcefestoppei. II. The appellants say: “We doubt whether a correction of this decree, so as to affect the land in question, could be made, after the death of Agnes H. Riefe, without her heirs at law, to whom the real estate descends, being made parties to the proceedings. We are, however, quite certain that no execution could issue for the sale of this land upon a corrected decree, or upon any decree or judgment against Agnes H. Riefe, after her decease, without first re-establishing the right .so to do by proper order, made in accordance with Code, section 3092, which provides the only method for selling such real estate upon execution.” Both parties — 657 — are in court, claiming title to the land in question under decrees, and adjudging it to have been the land of H. C. Riefe, and not that of Agnes H. Riefe. For the purposes of this suit, therefore, the ownership will be presumed to have been in H. C. Riefe. The principle is not different from a case in which parties contest for the title to land, each of whom traces his title to a common grantor. It may well be said that the issues in the case concede that H. C. Riefe was the owner of the land. Therefore, for the purposes of this suit, Agnes H. Riefe should be regarded as having no such interest as that her presence, or that of her heirs, was necessary. The administrator of his estate was served with notice of the pendency of the motion to correct the decree. The utter inapplicability of Code, section 3092, to this case must be apparent. The section is a provision for cases in which a judgment has been obtained against a party in his lifetime, or the executor of his estate, and there is an attempt to subject the real estate to the payment of the unpaid judgment. Mrs. Riefe was not a judgment debtor. 3. attachment execution. Ill, The execution upon which the land was sold and purchased by the plaintiff issued in the equity suit, and it is urged that it should have been in the law case. The decree in the equity case issuance of the execution, and, even if error, it is not available in this proceeding to defeat the title of the plaintiff. The difference in no way affected the defendants. ■ ^ 4. Action to suboteít^yaudity ?igÍtctoeiuestion-IY. Claim is made that the decree is void because of the adjudication upon the answer of James Thompson in the equity case of Edson Keith & . . adjudication m favor of Tnompson was a judgment establishing his claim for the unpaid balance of the purchase price -of the land against H. C. Riefe, and a decree against all parties, making his claim the first lien. It is — 658 — said that Riefe and wife, after filing their answer, did not appear further, and that the answer was not a cross petition. The answer states the facts as to his claim, and, as against all the parties, asks the relief granted. We think such a pleading is in the nature of a cross petition. But, aside from this, the decree in favor of Thompson, if void, would not render that in favor of the plaintiff void. It was entirely independent of the issues on which Keith & Co.’s relief, against Riefe and wife, was granted. The plaintiff in that action could not control the matter of notice upon the cross petition. 5. DECBEEfor erroneous d'escription: correction: inter-effect on title, V. In the original decree one of the descriptive words of the land was erroneously written as “northwest,” for “southwest,” or it was so illegibly written that it could not be _ JlllOWB WÍUCJl descriptive WOl’d was intended. When the decree was corrected the description was made certain and correct. The description of the land was not a matter of controversy on the trial. The correct description appeared in other places in the decree, and the execution upon which the land was finally sold contained a correct description. There is nothing in these facts to invalidate the title of the plaintiff. 6. execution right to deem. VI. The appellant asks, if the appellee’s title is confirmed, that she be permitted to redeem from the sale. This is what should have been done al the outset. At every step, both in the legal and equitable proceedings, Keith & Co. was prior in its efforts to obtain a lien, and, as we hold, had the priority. Its claim was small, and could have been discharged by the appellant, with a large advantage to herself. Instead of doing so, she elected to contest for a priority of liens. Her claims to priority have not the support of equitable considerations, but are based largely upon objections to the — 659 — forms and methods of procedure after the institution of the suit by Keith & Co. With a purpose to defeat the lien or title of the plaintiff in toto, she has permitted the statutory period of redemption to pass without in any way making an offer, or manifesting a disposition, to redeem. Equity will sometimes grant such relief, but not upon the facts of this ease. We do not think it necessary to consider further questions in the case. The decree of the district court is in harmony with our views, and it is aejtbmed.