Beaver v. Ross

• Decision Date: 17 November 1908
• Citation: 140 Iowa 154,118 N.W. 287
• Parties: BEAVER ET AL. v. ROSS, SHERIFF, ET AL.
• Court: Iowa Supreme Court

140 Iowa 154

118 N.W. 287

BEAVER ET AL.

v.ROSS, SHERIFF, ET AL.

Supreme Court of Iowa.

Nov. 17, 1908.

Appeal from District Court, Dallas County; Edmund Nichols, Judge.

Suit to enjoin the sheriff from selling certain real estate as the property of Jacob H. Beaver. The case was tried to the court, resulting in a judgment for defendants, and plaintiffs appeal. Reversed.Shortley & Kelley, for appellants.

White & Clarke, for appellees.

DEEMER, J.

In November of the year 1898 F. E. Collins and S. M. Leach obtained judgments against Jacob H. Beaver, and in January of the year 1899 the Dallas County Savings Bank also obtained a judgment against him. These judgments were rendered by the Dallas county district court, and were properly made of record and duly indexed. In July of the year 1899 Israel Beaver died seised of the real estate in controversy, and by his will devised a life estate in the property to his wife, Elizabeth, and then provided that, “at the death of my wife, Elizabeth Beaver, the real estate and all the personal property still remaining shall be sold. Of the proceeds of the sale the sum of twenty-five hundred dollars shall be set aside and reasonably invested, the income derived from the same to be devoted to the support and maintenance of my son James M. Beaver for his life. At his death the said twenty-five hundred dollars and any accrued interest to be equally divided among the heirs hereinafter named. After setting aside of the said sum of twenty-five hundred dollars, all of the remainder of the proceeds of the said sale shall be equally divided between my children and heirs to-wit: Jacob H. Beaver, Williard Beaver, Thomas Beaver and Mary E. Myers or their children. I hereby appoint Jacob H. Beaver, my executor to carry into effect the provisions of this my last will.” The widow died February 28, 1907, and on June 1, 1907, executions were issued upon the aforesaid judgments, which on the same day were levied upon the interest of Jacob H. Beaver in the premises in controversy acquired under the will. On July 1, 1907, Jacob H. Beaver, as executor of the will, was also garnished under these executions. To restrain the sale of the land under the executions, and to clear the title of all clouds resulting therefrom, this action was brought by Mary Beaver, the wife of Jacob H., and by Jacob H., as executor, and it is claimed that Mary Beaver took by assignment from Jacob some time in the year 1899 whatever interest he (Jacob) had in or to the lands in controversy or their proceeds, and that this assignment was verbal and made before the levy upon the land, or the garnishment of the executor. In their answer defendants claim that the interest which Jacob H. Beaver took under the will of his father was real property, and that the lien of their judgments attached thereto immediately upon the death of the father; that the real estate has never been converted into personalty; that, if it had been so converted, their garnishments are superior to the alleged assignment to Mary H. Beaver; and that the assignment, even if one were made, is fraudulent and void, because it was executed with the intent to hinder, delay, and defraud the creditors of Jacob H. Beaver, and especially the defendants, who hold the judgments hitherto mentioned. A demurrer to the answer setting up the facts above recited was overruled, to which ruling exception was taken. These demurrers were bottomed upon the proposition that Jacob H. Beaver had no such interest in the real estate in controversy as was subject to levy or sale. It will be observed that if Jacob H. Beaver took an interest in real estate under the will of his father, and that this interest was subject to levy and sale, the decree of the trial court is undoubtedly correct, for the lien of the judgments attached immediately upon the death of the father, or, in any event, upon the death of the mother, and the assignment under which plaintiff Mary Beaver claims would be junior, and inferior, to the levy of the executions. On the other hand, if the interest which Jacob H. took under the will is personal in character, the assignment thereof to Mary H. Beaver would be superior to any lien or interest acquired under the levy of the executions, whether by garnishment or otherwise, unless the sheriff or the plaintiffs in execution show that the assignment was fraudulent as to them.

The first question in the case is the nature of the interest which Jacob H. Beaver took under the will of his father. It will be noticed that no trustees are named in the will in whom the title might rest. A life estate is given the wife, Elizabeth, and it is then provided that the real estate shall be sold, $2,500 of the proceeds set aside for the support and maintenance of one of the children, and the remainder thereof divided among five other children, naming them. Jacob H. Beaver was appointed as executor to carry into effect the provisions of the will. On the one hand, it is contended that Jacob H. Beaver took one-fifth in fee of the land, subject to the life estate of the mother and its proposition of the $2,500 which was to be set aside upon the death of Elizabeth for the use and benefit of James H. Beaver; while, on the other, it is contended that, under the doctrine of equitable conversion, the interest which Jacob H. Beaver took under the will was and is personal in character, that this was assigned to Mary H. Beaver before the levies of any of the executions, and that her right thereto is prior, and superior, to the garnishments. Equitable conversion is defined as a constructive alteration in the nature of property by which in equity real estate is regarded as personalty or personal estate as realty. It grows out of the old equitable maxim that “Equity regards that done which ought to be done.” It has been adopted for the purpose of executing trusts, and it is essential to the application of the doctrine that the property should be subject to a trust or imperative direction for conversion. Condit v. Bigalow, 64 N. J. Eq. 504, 54 Atl. 160.

Appellees contend that the doctrine does not apply here for the reasons (1) that no title passed to the executor or other trustees; (2) that the conversion could not take place in any event before the death of the widow; and (3) that no express power of sale is given to the executor. It was quite generally held that there need be no devise in terms to testators, executors, or to trustees in order that the doctrine of equitable conversion may apply. Ebey v. Adams, 135 Ill. 80, 25 N. E. 1013, 10 L. R. A. 162. And the fact that the sale is postponed to a time subsequent to the death of the testator is not controlling. Allen v. Watts, 98 Ala. 384, 11 South. 646;Meakings v. Cromwell, 5 N. Y. 136;Collier v. Grimesey, 36 Ohio St. 17;Mellon v. Reed, 123 Pa. 1, 15 Atl. 906. Where there is a postponement of the sale to a time subsequent to testator's death, the courts are in conflict regarding the time when the conversion takes place; some of them holding that it takes place on the testator's death, and that there is no devise of realty, and others that it does not occur until the time arrives when the change should be made. See High v. Worley, 33 Ala. 196;Rumsey v. Durham, 5 Ind. 71;Cropley v. Cooper, 19 Wall. 167, 22 L. Ed. 109;Hocker v. Gentry, 3 Metc. (Ky.) 463;Fairly v. Kline, 3 N. J. Law, 754, 4 Am. Dec. 414;Underwood v. Curtis, 127 N. Y. 523, 28 N. E. 585;Thomman's Estate, 161 Pa. 444, 29 Atl. 84;Ramsey v. Hanlon (C. C.) 33 Fed. 425. Contra, Shipman v. Rollins, 98 N. Y. 311;Vincent v. Newhouse, 83 N. Y. 505. Under the doctrine announced by these latter cases, until the time of sale arrives, the land is treated as realty; title vesting in the devisees and being subject to any liens which may be created in the interim. See Sayles v. Best, 140 N. Y. 368, 35 N. E. 636;Nelson v. Nelson, 36 Ind. App. 331, 75 N. E. 679. The ...