Rider v. Kelso

5 N.W. 509, 53 Iowa 367

• Court: Supreme Court of Iowa
• Decided: April 21, 1880
• Status: Published

Opinion

Day, J.

i fbaxjdusedations';" cMd'fconveyance. I. At the time of the conveyance the plaintiff • was about twenty-six years of age. She was the owner, by inheritance, of the land, in controversy. She had always resided with her mother, and allowed her ns® the land and apjDropriate the proceeds, Her mother, Catharine, with the assistance of the plaintiff’s brother William, induced the plaintiff to execute the deed in question, without consideration, representing to her that it was a mortgage or paper to enable her mother to get lumber to build a house. Having confidence in her mother, and relying upon her representations, she signed the deed without reading it, believing it was for the purpose represented. That the deed was fraudulently procured we entertain no doubt. The defendant, however, insists that the plaintiff can not have relief in a court of equity because she negligently and carelessly executed the deed without reading it, and cites in support of this doctrine numerous authorities. That this is the general rule must be conceded. Rut we think it does not apply to a case where the confidential relation of parent and child exists. 11 can not be imputed to a child as a want of vigilance that he accepts as true, without question or further inquiry, the declaration of a parent with whom he has always resided, whom he has been accustomed to obey, and in whose word he has habitually confided. Upon this subject see Story’s Equity Jurisprudence, § § 307, 309.

II. On the 1st day of April, 1873, Anltman, Miller & Co. recovered a judgment against Catharine McManus for $215.05 and costs. On the 11th of March, 1876, the interest of Catharine McManus in the sixty acres of land in question, which interest was derived in part through the conveyance of plaintiff, .was sold under execution issued on said judgr ment to the defendant Kelso. As to this portion of the land the court held that the defendant is a ~bona fide purchaser, for value, without notice of the plaintiff’s rights, and the title thereto was confirmed in defendant. This holding we think is correct.

eimscrat’ judicial sale, III. Several other judgments were recovered against Catharine McManus in the years 1873 and 1874, upon notes dated April 12th, July 23d and August 21st, 1872. These judgments were assigned to Kelso April anq June 8th, 1876. Under these judgments the interest of Catharine McManus, including the interest claimed by plaintiff, in all the lands in controversy was sold to Kelso at sheriff’s sale on'the 2d and 25th of September, 1876. ■ Sheriff’s deeds were duly executed, under which the defendant claims all the interest of plaintiff. On the 12th day of June, 1876, the plaintiff .filed in the Franklin District Court a petition in equity against Catharine McManus, to set aside the deed in question on the ground of fraud. That cause of action was dismissed October 1,1877, after the commencement of this action in the Circuit Court for the same purpose. The defendant Kelso purchased at the sheriff’s sale on the 2d and 25th days of September, 1876, whilst the petition remained on file in the District Court, and before the action was dismissed. Section 2628 of the Code provides: “When a petition has been filed affecting real estate, the action is pending so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject-matter thereof as .against the plaintiff’s title, if the real property affected be situated in the county where the petition is filed.”

The appellant urges in an elaborate argument that the doctrine of Us pendens can not affect the bona fides of the defendant. We think, however, that, whatever may be the modifications of the rule, when it is invoked as a mere equitable principle, independently of statute, under the above section the defendant could not become a bona fide purchaser of any interest in the land in question, as against the plaintiff, after the action to set the deed aside was commenced and whilst it was pending.

IY. It is claimed, however, that the deed should not be set aside because of the delay in bringing the action for* that purpose. Mere delay, not extending to the time prescribed in the statute of limitations, would not- affect the plaintiff’s rights as to Catharine McManus. All of the notes, on which the judgments were recovered under which the defendant claims the land, were executed before the conveyance to Catharine McManus. Credit was not extended upon the faith of the property in controversy.

3. t.ttctt : judgsignment. Y. It seems to be insisted that the judgment creditors acquired some interest in the lands in question, upon the recovery of their judgments, before the plaintiff commenced any action to set the deed aside, and

that this interest passed by assignment to the defendant; and •further, the claim seems to be made that the defendant may have acquired a greater right through the assignment than the original holders of the judgments possessed. The judgments operated as a lien only upon the lands actually owned by the judgment defendant. It can not be doubted that at any time before purchase of the property at sheriff’s sale the plaintiff, might have asserted her rights in the property ’as against the judgment plaintiffs. See Parker v. Pierce, 16 Iowa, 227; Blaney v. Hanks, 14 Id., 400; Thomas v. Kennedy, 24 Id., 397. The assignee of a judgment, as to a lien on property for the satisfaction of the judgment, can occupy no better position than that of the assignor.

Upon both appeals the judgment is

Affirmed.