Brown v. Tuthill

1 Greene 189

• Court: Supreme Court of Iowa
• Decided: January 15, 1848
• Status: Published

Opinion

Opinion by

Greene, J.

This was an amicable suit, arranged between the parties, to test their respective rights to twenty acres of land in Cedar county. By arrangement, Brown as plaintiff, filed his declaration in an action of right. It appears without dispute, that Charles M. Jennings had title to the land in question, on the 21st Sept. 1841, at which time William EL Tuthill sued out a writ of attachment against said Jennings, which W'as served on the 24th of that month. In the proceedings under the attachment Tuthill obtained judgment on the 18th of May, 1842. Execution was issued and levied on the property, on the 23d Sept, following, and on the 19th Nov. it was sold to the plaintiff, Tuthill; and a sheriff’s deed was executed to him, on the 7th of Juno, 1844, which was filed for record on the next day. The same land was sold by Jennings to John J. Tomlinson, and a deed executed on the 9th of August, 1841, and filed for record on the llth. of Oct., 1842, and on the next day a deed was placed upon record, conveying the land from Tomlinson to Brown. Upon these facts the court below found the title to be in the defendant, TutMll, and rendered judgment accordingly.

The only question involved in this case is, will an attachment levy, or a judgment lien, have precedence over a deed previously executed, but subsequently recorded. And this point we have no difficulty in deciding under the statutes of our state.

Brown traces his right to the land in question, by a deed from Jennings, who held the undisputed fee, to Tomlinson, executed Aug. 9, 1841; and then by deed from Tomlinson to himself, dated Oct. 12, 1842, one day after the deed from Jennings to Tomlinson had been filed for record. Under the Rev. Stat., p. 209, § 31, no deed is valid, except between the parties, or between those who have actual notice thereof, until deposited for record. As the present deed was not deposited for record until the llth of Oct., 1842, it could not affect the levy made by virtue of the attachment, on the 24th of Sept., 1841. From the dato of that levy the land was under legal control; and the claim of the creditor operated as a conditional lien upon it, and became absolute when liis claim was merged into a judgment. Thus the judgment attached a. lien upon all the right not transferred and of record, which the debtor may have had in the land, prior to the attachment levy. With a proper regard to the object and spirit of the attachment, and of the registry laws of our state, we cam come to no other conclusion than that a legal attachment lien will hold against a prior unrecorded deed. And there is another reason why the lien, adverse to the deed, must bo recognized in this case. It was not only secured by the attachment, and “ bound from the time of serving the writ,” Rev. Stat. p. 79, § 7 ; but the lien was confirmed and made absolute by the judgment, which was rendered previous to the registry of the deed. The judgment by virtue of the-statute, became an absolute lien from the day of its rendition. Pav. Stat. p. 271, § 6. As to the effect of a judgment upon real estate, see Harrington v. Sharp, decided at the present term of this court,

(a.)

We should feel more hesitation in deciding this case, if the authorities referred to by plaintiff’s counsel were based upon a statute like ours. While such decisions would be applicable to the peculiar registry acts of New York, they would be obviously repugnant to those of our state.

The court below very properly decided, that the right to the land in question was in Wm. H. Tuthill.

Judgment affirmed,

See Supra, p. 181.