Boggs v. Douglass

• Decision Date: 11 May 1898
• Citation: 75 N.W. 185,105 Iowa 344
• Parties: CLENDENEN BOGGS v. ARCHIE DOUGLASS, Appellant
• Court: Iowa Supreme Court

75 N.W. 185

105 Iowa 344

CLENDENEN BOGGS v. ARCHIE DOUGLASS, Appellant

Supreme Court of Iowa, Des Moines

May 11, 1898

Appeal from Monroe District Court.--HON. T. M. FEE, Judge.

ACTION to recover rents and profits of certain lands. The defendant alleged he held possession of one tract under a judgment and decree establishing it as a lien, and ordering the sale thereof, and asked that the rents and profits derived therefrom be applied in satisfaction of the judgment. This relief was denied and he appeals.

Affirmed.

T. B Perry for appellant.

Wm. A Nichols for appellee.

OPINION

LADD, J.

In Boggs v. Douglass, 89 Iowa 150, 56 N.W. 412, the title to an undivided one-half of the south one-half of the northeast one-fourth of section 32, in township 7 north, of range 16 west of fifth principal meridian, was adjudged to be in the plaintiff, though subject to the lien of a judgment recovered by Cassady against William and Aaron Hicks, and assigned to the defendant, and that to the other undivided one-half thereof in the defendant. This was one of the judgments considered in Fordyce v. Hicks, 76 Iowa 41, 40 N.W. 79, and established as a lien against this land superior to plaintiff's title in Boggs v Douglass, 100 Iowa 385, 69 N.W. 689. It may be mentioned that the plaintiff acquired his title under a sheriff's deed executed in June, 1888. Trimble obtained a judgment against William and Aaron Hicks, and began proceedings to subject this land to its payment after an action for the same purpose had been commenced by Cassady. A decree was entered as prayed, and from the sale thereunder of Aaron Hicks' interest therein the plaintiff redeemed by virtue of a judgment procured by him from Shaw, and received the deed as stated. The defendant acquired title and possession of the land February 17, 1883, under a deed from William and Aaron Hicks, declared fraudulent in the several cases referred to. It will also be observed that the defendant held possession and denied the plaintiff's ownership; thus ousting him as tenant in common. See Boggs v. Douglass, supra. He continued in possession from June, 1888, when the plaintiff acquired title to an undivided one-half, up to the beginning of this action. That he must account for the rents and profits of such half interest is not questioned, but it is asserted on his part that these should be applied to the satisfaction of his judgment. The result of the decree was the establishment of the judgment as a lien on the land, the same as though no conveyance had been made by Hicks to the defendant, and special execution was ordered that the remedy might be effectual. In such a case the creditor obtains no advantage or lien superior to that he would have had in event of no conveyance by the judgment defendant except in so far as acquired by greater diligence in bringing his action. In other words, the conveyance was good against the whole words except the creditors of the grantor, and these gained nothing thereby, and lost nothing if they asserted their rights in apt time. The question involved, then, is whether a judgment plaintiff in lawful possession of lands on which his judgment is a lien has the right to apply the rents and profits derived therefrom to the satisfaction of that judgment as against the owner thereof, not a judgment defendant. The appellant bases his claim of such right on a supposed analogy with a mortgagee in possession. Where the common-law doctrine prevails, the estate is vested in the mortgagee, and he may take possession on condition broken (in some of the states before this occurs), and apply the rents collected on the mortgage debt. 1 Jones, Mortgages, section 702; 3 Pomeroy, Equity Jurisprudence, section 1187. In Iowa the equitable theory prevails, and the title remains in the mortgagor. Hall v. Savill, 3 G. Greene, 37; Courtney v. Carr, 6 Iowa 238; White v. Rittenmyer, 30 Iowa 268; Code, section 2922. The mortgage is a mere lien or charge on the land as security of the debt. Newman v. De Lorimer, 19 Iowa 244; McHenry v. Cooper, 27 Iowa 137. It is incident to the debt, and upon the death of the mortgagee, being personal property, goes to the personal representatives, while the estate of the mortgagor, being real property, descends to the heirs. White v. Rittenmyer, supra. It can only be enforced by equitable proceedings. Code, section 3427; Clough v. Seay, 49 Iowa 111. But the mortgagee obtains such an interest in real estate that he is a purchaser, within the meaning of the recording act. Porter v. Greene, 4 Iowa 571; Seevers v. Delashmutt, 11 Iowa 174; Hewitt v. Rankin, 41 Iowa 35; Koon v. Tramel, 71 Iowa 132, 32 N.W. 243; In re Gill's Estate, 79 Iowa 296, 44 N.W. 553; Weare v. Williams, 85 Iowa 253, 52 N.W. 328. It is well settled under the authorities that the mortgagee cannot maintain an action in ejectment against the mortgagor, but in some states it is held that, where the mortgagee obtains possession by any lawful means or enters therein with the assent of the mortgagor, without a definite time being fixed to continue therein, he may retain possession until his mortgage debt is paid. Frink v. Le Roy, 49 Cal. 314; Roberts v. Sutherlin, 4 Ore. 219; ...