Boggs v. Douglass

Kjnne, J. Plaintiff contends that the decree entered in the court below is erroneous, because not in accordance with the opinion of this court, to which reference has been made. That opinion found that plaintiff was the holder of the legal title to the land, and entitled to its possession; that such rights were subject to Douglass’ right to “enforce the lien created by the Casaday judgment, and the petition in equity filed to enforce it;” that the lien created by said Casaday judgment and creditors’ bill was paramount to plaintiff’s lien under which he acquired the legal title to the land; that Douglass’ lien did not give him the right of possession as against plaintiff, until it had been enforced. Plaintiff, then, was entitled to the possession of the land, subject to the paramount claim of Douglass under the Casaday judgment and creditors’ bill, whenever that claim should be legally enforced. So long as the Casaday judgment was in force, and the bill was pending upon it to set aside 388 the" sale from the Hickses to Douglass, and so long as the latter was the owner of said judgment, he (Douglass) held an enforceable lien against the property; and if, at any time while it was so held, it ripened into an execution and sale of the property, the purchaser thereunder would take a title free and clear of plaintiffs claim and lien, because the bill was filed on the Casaday judgment prior to the time of the filing of the bill on plaintiffs judgment, and the lien of Douglass would, therefore, be paramount. But so long as Douglass had an enforceable but unenforced lien, neither he, nor any one else claiming thereunder, could claim or hold possession of the premises thereunder, as against plaintiff. Plaintiff contends that the court could make no order for the enforcement of the lien of the Casaday judgment and creditors’ bill until a trial was had thereon, and the fraud alleged in the bill established by evidence; that, when the opinion speaks of the right of Douglass to enforce “the lien created by the Casaday judgment and the petition in equity to enforce it,” it refers to such a trial. It may be admitted that ordinarily the lien acquired by the filing of a creditors' bill to set aside a sale on the ground of fraud is not such as to authorize a court to, without proper proof of the averments of the bill, order a sale of the property on the judgment. Here, however, we have a case where the alleged fraudulent grantee, Douglass, has become the purchaser of a judgment upon which a creditors’bill has been filed against him to set aside the conveyance of the land to him as fraudulent. He had a right to purchase the Casaday judgment, and with it he took the liens which had been created by the filing of the creditors’ bill thereon. See Bank v. Loomis, 100 Iowa, 266 (69 N. W. Rep. 443); also, Fordyce v. Hicks, 76 Iowa, 44 (40 N. W. Rep. 80), wherein the question of the purchase of this and other judgments is considered. It is there said; “Themere 389 fact that he is a fraudulent grantee can make no difference. He was the owner of the real estate, and as such he had the right to pay off, or purchase, the indebtedness of his grantors. He could thus pay Or obtain all or a part of such indebtedness, and in that way perfect his title against the only parties who could question it.” Smith v. Grimes, 43 Iowa, 356. Now, plaintiff’s contention amounts to this: That Doagiass, who was adjudged in plaintiff’s other suit to be a fraudulent grantee of the property, shall, in the creditors’ bill filed upon the Casaday judgment, which he (Douglass) now owns, establish that he (Douglass) is a fraudulent grantee, in order to secure the benefit of the payment of the Casaday judgment, which is a paramount lien to plaintiff’s, because the bill on the Casaday judgment was first filed. We do not think this is the law. Being the absolute owner of the land as against the whole world except the creditors of the Hickses, he had the right to virtually admit the truth of the allegations of the bill, and purchase the judgment. Such lien was in no way connected with or dependent upon the fraudulent conveyance. No claim is made that Douglass colluded with any one to avail himself of the beñefít of a judgment which was not in all respects valid and just for the purpose of obtaining a lien prior to that of plaintiff. Why should Douglass, in order to avail himself of the benefit of the Casaday lien, be compelled to go through the farce of a trial? What principle of law prevents him from admitting á fact which he knows could be established by evidence, and thus acting upon it in protecting his title? We discover no reason in such a case for requiring the grantee to establish, in a trial, fraud as against himself, before he can have the benefit of a prior lien which he has purchased. The opinion of this court does not contemplate or require such procedure in this case. The Casaday lien and creditors’ bill was properly 390 enforced by tbe decree complained of, which foreclosed the lien, and ordered a sale of the property. The plaintiff’s rights are fully preserved by the decree, and he has no just cause of complaint. — -Affirmed.