Austin v. Bowman

• Citation: 81 Iowa 277,46 N.W. 1111
• Parties: AUSTIN v. BOWMAN ET AL.
• Decision Date: 23 October 1890
• Court: Iowa Supreme Court

81 Iowa 277

46 N.W. 1111

AUSTIN

v.BOWMAN ET AL.

Supreme Court of Iowa.

Oct. 23, 1890.

Appeal from district court, Butler county; JOHN C. SHERWIN, Judge.

Action in chancery to restrain the sale upon execution of lands of plaintiff. Upon a trial on the merits relief prayed for by plaintiff was granted. Defendants appeal.E. L. Smalley, for appellants.

Gibson & Dawson, for appellee.

BECK, J.

1. The defendants seek to enforce a judgment in their favor against Phineas Weed and J. D. Powers, rendered June 9, 1879, by the sale, on an execution issued thereon, of lands owned by plaintiff. At the date of this judgment the land was owned by Phineas Weed and W. P. Weed. May 14, 1881, Phineas Weed conveyed his interest in the land to W. P. Weed, who, October 28, 1887, conveyed the land to plaintiff. The judgment is claimed to be a lien upon the interest in the land held by Phineas Weed on the day it was rendered. The grantor of the Weeds, under whom they acquired the title before the conveyance to them, executed a mortgage on the land to Ellen Brett, upon which an action to foreclose was commenced June 5, 1879, before defendant's judgment was rendered. The decree of foreclosure was rendered afterwards. The lands were sold upon special execution issued upon this decree of foreclosure to Mrs. Brett, and a certificate of the sale was made to her. January 24, 1882, the certificate was assigned by Mrs. Brett to John and Nancy Scolby, the parents of the wife of Phineas Weed, and about a month afterwards a sheriff's deed for the land was made to them, which was filed for record April 4, 1888. After the action was commenced, in 1887, Nancy Scolby conveyed the land by quitclaim to P.S. Weed, the wife of Phineas, who, with his wife, after this action was begun, conveyed the land by quitclaim deed to plaintiff.

2. It will be observed that the mortgage is prior and paramount to defendant's judgment, and that plaintiff has acquired whatever title and interest was held by Nancy Scolby, under the foreclosure and sheriff's deed. There can be no question as to the validity of her title to her interest, whatever that may have been. The remainder of the interest in the land, if she does not hold all of it, is in the estate of her deceased husband, and stands, as to defendant's judgment, in the same condition as her interest. If that judgment is not a lien on the land to the extent of her interest, it does not bind the interest of the husband's estate, whatever...