Ind. School Dist. of West Point v. Werner

43 Iowa 643

Opinion

Adams, J.

What interest, if any, the defendant had in said land, does not appear from the record. He had paid the taxes on the land for twenty-four years, and obtained his fire wood and fencing therefrom. This court will not presume that he was a trespasser, and in no respect is the case more favorable to the plaintiff than it would be if the defendant was owner of the land, and had done the acts complained of.

.At the time of the alleged cutting and removal of wood and timber, no decree had-been rendered in favor of the plaintiff. • At that time the plaintiff was, at most, a mere judgment lien holder. Plaintiff' had, it is true, brought suit in equity to set aside the title of those in whom it stood oí record, but no attachment had issued and no levy had been made. “A judgment lien on land constitutes no property or right in the land itself; it only confers a right to levy on the same to the exclusion of other adverse interests subsequent .to the judgment.” Rodgers v. Bonner, 45 N. Y., 379.

A judgment debtor, therefore, has a right to cut fire wood and timber upon his land previous to a levy, and it follows that such wood and timber cut, but not removed, become his personal property, and do not pass by a levy upon, and sale of, the land.

We think the injunction was properly dissolved.

Affirmed.