Bush v. Herring

Deemer, J. 1 On July 17, 1895, defendant Herring' commenced action aided by attachment against one Theodore Kreiger. The attachment was' levied' on the property in dispute, and at that, time the record title was in Theodore Kreiger. Antone Kreiger, wife of Theodore, intervened in the action, alleging that she was the wife of Theodore, and the owner of the attached property. About the time the case was reached for trial, she dismissed her petition of intervention, and plaintiff in that proceeding • took judgment against the defendant' therein, and secured an order for a special execution. That execution was levied on" the property, and a sale thereof had to defendant Herring, which, on February 21, 1898,.' ripened into a. deed. At the time the attachment was levied the records showed a mortgage from Antone Kreiger to the plaintiff to secure the sum of $1,500. After the ^execution of the-mortgage, Antone Kreiger commenced a divorce suit against her husband, Theodore, and caused the property in controversy to be attached. On May 2d Antone Kreiger conveyed the property to plaintiff, and this deed was recorded May 8th of the same year. Thereafter plaintiff brought action’ to foreclose her $1,500 mortgage. A decree by default against- Antone Kreiger was entered by the court in that suit, and special execution placed in the hands of the sheriff' directing him to sell the property to satisfy the judgment rendered in that case. Defendant Herring thereupon brought a suit in equity to enjoin the sale, making plaintiff' herein and the sheriff parties defendant. That action was, by agreement, consolidated with the- above entitled case, and the two were tried as one, and are to be so-tried in this court. Adjudgment ivas entered in the case brought by Herring dismissing his petition, taxing the costs-of the proceedings to. him, and in the case bearing t}ie title160 .•affixed to tliis opinion a decree was rendered setting aside the sheriff’s deed and quieting- title in plaintiff. .2 3 [160] The rules of law applicable to the issues tendered by the pleadings in this case are well settled, and need only be •stated as we proceed with a narration of the facts found. In this narration we will not attempt to discuss the evidence, except in a general way, but to simply state our conclusions. 'There is no doubt that when Herring’s attachment was levied the records showed the legal title of the lots to be in Theodore Kreiger. But the records are not con-elusive on the question of ownership. An attaching creditor is not a purchaser. He takes the interest which his debtor had in the lands at the time of attachment, ■and nothing more. Consequently an unrecorded deed or prior equity takes precedence over an attachment. Moorman v. Gibbs, 75 Iowa, 537; Norton v. Williams, 9 Iowa, 528 ;Eldred v. Drake, 43 Iowa, 569, and eases cited. A purchaser' at judicial or sheriff’s sale, whether such purchaser be the judgment creditor or a stranger, is a purchaser, .-.and is generally protected from prior unrecorded deeds or equities. Evans v. McGlasson, 18 Iowa, 150; Brown v. Wade, 42 Iowa, 647. While the records showed the title to be in Theodore Kreiger, we are satisfied that Antone Kreiger was the beneficial owner of the land, she having furnishd from her own funds the consideration that went into the purchase thereof. Being such owner, the title of her grantee was prior to any interest derived by Herring under his attachment. Did Herring have notice thereof before he purchased at sheriff’s sale? That question is solved by the record. Evidence showing notice to the defendant Herring of plaintiff’s ownership of the property before he purchased the same at sheriff’s sale is abundant. Indeed, Herring admits that plaintiff told him before his purchase that the property belonged to her. But, if this be not true, the clear preponderance of the evidence shows notice to defendant Herring before he purchased. While plain tiff’s $1,500 mortgage -was for certain purposes [161] merged in the deed made by Antone Kreiger to ber, yet sbe bad tbe right to foreclose the same for tbe purpose of cutting •off equities existing prior to tbe time sbe obtained ber deed, and defendant is in no position to enjoin a sale under tbe foreclosure decree. He lias no interest in tbe property, and cannot be affected by tbe decree. In tbe divorce proceedings plaintiff was awarded tbe property in controversy as alimony, but this is not conclusive of ber ■claim of ownership. Tbe decree in each case seems to be .sustained by tbe evidence, and it is in each affirmed.