Bowen v. Billings, Boise & Co.

Citation14 N.W. 152,13 Neb. 439
CourtNebraska Supreme Court
Decision Date07 December 1882
PartiesBOWEN v. BILLINGS, BOISE & CO.

OPINION TEXT STARTS HERE

Appeal from Adams county.

A. H. Bowen and C. J. Dilworth, for plaintiff.

O. B. Hewitt, for defendant.

MAXWELL, J.

This is an action to quiet title. The plaintiff alleges in her petition in substance that she is the owner and in possession of lot 582 in the town of Juniata. She derived the title to the same as follows: That the Eastern Land Association was the owner of said premises on the twenty-first day of December, 1874, and on said day said association sold said lot to Bowen & Laird, the consideration being paid by them, but by mistake the deed was taken in the name of Adna H. Bowen; that in January, 1876, the firm of Bowen & Laird failed, and, being largely indebted to one W. B. Thorne for moneys due from said firm, sold and conveyed said lot to said Thorne, the deed for said premises being made by Adna H. Bowen; that in March, 1878, said Thorne, for a valuable consideration, sold and conveyed said premises to the plaintiff; that on the twentieth day of June, 1879, one S. L. Martin, sheriff of Adams county, by virtue of two executions issued out of the district court of Adams county, on judgments recovered against Adna H. Bowen, levied upon said lot as the property of said Bowen, and has advertised the same for sale, and threatens and is about to sell the same. The prayer is to have the sale enjoined and the title quieted.

Billings, Boise & Co., the judgment creditors, were substituted for the sheriff and filed an answer, wherein they allege that the plaintiff has “no right, title, or interest in or to said lot;” that at the time of filing transcripts of their judgments in said court the legal title was in Adna H. Bowen, and deny that said lot was conveyed by mistake to said Bowen, or that it was purchased by the firm of Bowen & Laird. The case was submitted to the court on the pleadings, and judgment rendered in favor of the defendants. The plaintiff appeals to this court. The court made the following special findings: First, that on the twenty-fourth day of June, 1876, the transcripts of judgments in favor of Billings, Boise & Co., plaintiffs, and against Adna H. Bowen, were duly filed for record in this court, upon which the execution enjoined herein was issued; second, that the legal title to said lot No. 582 in the town of Juniata, Adams county, Nebraska, was vested at that time in Adna H. Bowen by deed of date December 21, 1874, from the Eastern Land Association; third, that on the fourth day of December, 1876, the said Adna H. Bowen and Julia S. Bowen deeded said lot to William B. Thorne in satisfaction of a debt due said Thorne from the insolvent partnership firm of Bowen & Laird, composed of the said Adna H. Bowen and James Laird; fourth, that William B. Thorne afterwards, on the fourth day of March, 1878, deeded by warranty deed said lot to the said Julia S. Bowen, plaintiff.”

There is no denial in the answer that the lot in question was purchased with partnership funds. This fact, therefore, stands admitted. The question, therefore, presented is, does the lien of judgments against Bowen attach to this real estate? The lien of a judgment is not an interest in the real estate of a debtor. The creditor has neither a jus in re nor a jus in rem, as regards the real estate. The lien merely confers the right to levy thereon to the exclusion of other adverse interests subsequent to the judgment, ( Goveneyer v. Ins. Co. 62 Pa. St. 342; Conrad v. Ins. Co. 1 Pet. 386;Kemper v. Adams, 5 McLean, 507;Schaffer v. Cadwalleder, 36 Pa. St. 126; Thulusson v. Smith, 2 Wheat. 396;Metz v. State Bank, 7 Neb. 165; Galway v. Malchow, Id. 285;) and it attaches only to the interest of a debtor in the lands, ( Uhl v. May, 5 Neb. 157; Mansfield v. Gregory, 8 Neb. 432; [S. C. 1 N. W. REP. 382;] Mansfield v. Gregory, 11 Neb. 297; [S. C. 9 N. W. REP. 87.] In the last case it is said such lien does not exceed the actual interest of the judgment debtor in the land, and is subject to every equity therein existing against the debtor at the time of its rendition.

If property is bought by a partner in the firm, acting for the firm, the property belongs to the partnership as soon as the sale is complete, because the purchaser is the firm; and the fact that the title to real estate thus purchased is taken in the name of one of the partners, will not deprive it of the character of partnership property. Where a partnership is insolvent, the rule is to give to the creditors all the effects of the partnership, if necessary, for the payment of the debts, leaving only the surplus, if any, to private creditors, and to give to private creditors the private assets of the several partners, applying only the surplus to payment of the partnership debts. Ex parte Crowder, 2 Vern. 706; Ex parte Cooke, 2 P. Wms. 500; Parsons, Part. 347, 348.

The joint creditors have the primary claim upon the...

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