Boggs v. Douglass

• Decision Date: 09 October 1893
• Citation: 56 N.W. 412,89 Iowa 150
• Parties: BOGGS v. DOUGLASS ET AL.
• Court: Iowa Supreme Court

89 Iowa 150

56 N.W. 412

BOGGS

v.DOUGLASS ET AL.

Supreme Court of Iowa.

Oct. 9, 1893.

Appeal from district court, Monroe county; H. C. Travers, Judge.

Action in equity to recover possession of certain real estate, to correct errors in its description in a certain action instituted to subject it to the payment of a judgment, and to quiet the title to such real estate in plaintiff. There was a hearing on the merits, and a decree which denied to plaintiff a part of the relief demanded. From so much of the decree as is adverse to his interests, he appeals.Wm. A. Nichol, for appellant.

T. B. Perry, for appellees.

ROBINSON, C. J.

On the 17th day of February, 1883, for the stated consideration of $39,125, Aaron and William Hicks executed to Archie Douglass a warranty deed, which purported to convey to him about 835 acres of land in Monroe county, including that in controversy in this action, which is described as follows: “The east half of the northeast quarter and southwest quarter of the northeast quarter of section thirty-two, and the west half of the northwest quarter of section thirty-three, all in township seventy-three north, of range sixteen west.” On the same day Douglass executed to his grantors a mortgage on the land thus conveyed for the alleged purpose of securing the payment of promissory notes to the amount of $38,500. Four days later plaintiff commenced two actions, aided by attachments. The record submitted to us is somewhat confused, but we conclude from it, and from admissions of counsel, that one of them was against A. and W. Hicks, and that one was against T. S. Thorp as principal and Aaron and William Hicks as sureties. The attachments were levied upon the land in controversy. On the 17th day of the next April plaintiff recovered judgment in the first action against A. and W. Hicks for the sum of $1,108.06, an attorney's fee, and costs, and an order for the sale of the attached property, and on the next day he recovered judgment in the other action against Thorp as principal and Aaron Hicks and William Hicks as sureties for $1,101.66, an attorney's fee, and costs. On the 7th day of November of the same year he caused a special execution issued for the satisfaction of the first judgment to be levied on the land, although it does not appear that any sale thereunder was made. On the 10th day of the same month he filed in the proper court two petitions in equity, one describing the first judgment, and the other the second one, and alleging that on the 17th day of February, 1883, Aaron and William Hicks, for the purpose of hindering, defrauding, and delaying their creditors, and particularly the plaintiff, executed to Douglass a deed for real estate situate in the county of Monroe and state of Iowa, which was described. The description given was substantially the same as that contained in the deed to Douglass, excepting that by mistake in the first case the land in section 32 was stated to be in township “72,” instead of “73,” and the township in which section 33 is situated was omitted. In the second case the land was correctly described. The plaintiff asked in each case that the deed to Douglass and his mortgage be decreed to be fraudulent and void. The relief demanded in each case was granted on the 4th day of March, 1887, the erroneous description contained in the petition in the first case being copied into the decree, and it was adjudged in each case that the real estate therein described was subject to the judgment of the plaintiff upon which the case was founded. While those actions were pending, in November, 1884, Aaron Hicks died testate, making his widow, Elizabeth A. Hicks, the beneficiary of his estate. Archie Douglass was appointed executor.

On the 16th day of April, 1887, an undivided one-half of the land in controversy was sold to plaintiff under a general execution issued by virtue of his first judgment, as the property of William Hicks, for the sum of $1,657.57. On the 16th day of the next month, an undivided one-half of the land was sold as the property of William Hicks, under an execution issued for the satisfaction of a judgment in favor of Thomas Trimble, rendered on the 20th day of February, 1883, and against William and Aaron Hicks. A. Dorothy, who held a judgment against the same defendants, redeemed from the Trimble sale, the plaintiff redeemed from Dorothy, and in June, 1888, the sheriff executed to plaintiff a deed for William Hicks' interest in the land. On the 11th day of June, 1887, an undivided one-half of the land was sold to plaintiff for the sum of $1,400. It was sold as the property of Aaron Hicks, under an execution issued by virtue of the second judgment in favor of plaintiff. He claims that redemption from that sale was made by one Tinsley, the owner of a junior judgment lien, and that plaintiff, as the owner of part of another judgment rendered in favor of one Shaw, redeemed from Tinsley. In June, 1888, the sheriff executed to plaintiff a deed for Aaron Hicks' share of the land. The plaintiff claims to be the owner of the land, and asks that the mistakes of the petition and decree in the first of the two actions commenced in November, 1883, be corrected, that his title be quieted, and that he have judgment for the possession of the land. Archie Douglass, as executor and in his own right, Elizabeth A. Hicks, and William Hicks are made parties defendant. The defendants deny that the conveyance to Douglass was ever set aside as to the land in controversy, and insist that he is now the owner of it. They contend that for that reason the sale of William Hicks' share, made to satisfy the judgment of April 17, 1883, conveyed no interest. They contend that Douglass redeemed from plaintiff after he redeemed from Dorothy, and that the sheriff was, for that reason as well as others, without authority to execute a sheriff's deed for William Hicks' share. The defendants claim in regard to the alleged redemption by and from Tinsley that it was fraudulent and unauthorized and without effect; that Douglass redeemed of plaintiff Aaron Hicks' share of the S. W. 1/4 of the N. E. 1/4 and the S. E. 1/4 of the N. E. 1/4 of section 32 by a timely payment into court of the amount required for that purpose. They further claim that Douglass is the owner of three judgments, which are liens on the land paramount to that claimed by plaintiff; one of which was rendered in favor of A. J. Casaday, one in favor of J. R. Wallace, and one in favor of Alexander Ramsey. The district court decreed that Douglass properly redeemed William Hicks' undivided one-half of the S. 1/2 of the N. E. 1/4, and the N. E. 1/4 of the N. E. 1/4 of section 32, in township 73, of range 16, from the Trimble sale, and that plaintiff had no interest therein, but was entitled to the redemption money. The court also decreed that Douglass duly redeemed Aaron Hicks' half of the S. 1/2 of the N. E. 1/4 of section 32 from plaintiff's sale of June 11, 1887, excepting from the right acquired by plaintiff by virtue of a redemption under a part of the Shaw judgment which the court decreed that he had a right to make, subject, however, to the Casaday, Wallace, and Ramsey judgments, which plaintiff was required to pay within one year. It was further decreed that plaintiff has perfect title to and the right to possess the W. 1/2 of the N. W. 1/4 of section 33, and the title to and the right to possess as a joint tenant Aaron Hicks' half of the N. E. 1/4 of the N. E. 1/4 of section 32. The appeal requires us to determine the right of plaintiff as to William Hicks' share of the S. 1/2 of the N. E. 1/4 and the N. E. 1/4 of the N. E. 1/4 of section 32, and as to Aaron Hicks' share of the S. 1/2 of the N. E. 1/4 of the same section.

1. The plaintiff contends that by virtue of his attachment levied in the first suit on the 21st day of February, 1883, the judgment rendered therein, the equitable action to set aside the conveyance to Douglass, and the decree therein, and the sale of the land, the redemptions from the Trimble sale, and the execution of the sheriff's deed, he became vested with the share of the land originally owned by William Hicks. This is denied by appellees, who insist that, as the land had been conveyed to Douglass before the attachment, and as it was not described in the action in equity brought to set aside that conveyance, he was not required to redeem from the sale to plaintiff in redeeming from the Trimble sale. It appears that, after plaintiff redeemed from that sale, Douglass paid to the clerk, for the use of the plaintiff, the amount required to redeem from it, being the full amount of principal paid by plaintiff to redeem from Dorothy, with interest and costs, but failed to pay anything on account of the judgment in favor of plaintiff and the sale thereunder. The district court found, as we have stated, that his redemption was effectual to divest plaintiff of his interest in William Hicks' share of the land in question on this appeal, and that the money paid by Douglass belonged to plaintiff. It is the well-settled rule in this state that the levy of an attachment upon real estate which the attachment debtor has conveyed to another to defraud his creditors, unless followed by supplemental proceedings, creates no lien upon the property so attached. It is true that the interest of a debtor in real property subject to execution, whether legal or equitable, may be seized and sold at the suit of a creditor. But that rule does not apply to a case where the debtor has divested himself of all right to and interest in the property by an absolute conveyance to another. When that is done, he ceases to have any interest in the property which a court would enforce at his suit. Such a conveyance would be good excepting as against creditors, and the levy of an attachment upon the property conveyed, without more, would not operate to create a lien. Clark v. Raymond, (Iowa,) 53 N. W. Rep. 356;Id., 50 N. W....