Wishard v. Biddle

21 N.W. 15, 64 Iowa 526

• Court: Supreme Court of Iowa
• Decided: October 21, 1884
• Status: Published

Opinion

Reed, J.

The land in question belonged to tbe university grant. In 1868, one Balenseifer entered into a contract for tbe purchase of tbe land with tbe treasurer of the board of trustees of the state university. The price agreed upon was $1,000, and he paid $200 when the contract was entered into, and gave his note for the remainder, payable in ten years, with temper cent interest, payable annually. The contract contained a provision that it might be forfeited by the board of trustees at their option for non-payment, when due, of either principal or interest. In 1873, the contract was assigned to A. M. Rost. lie retained it until about the eighteenth of March, 1881, when he transferred it to Thomas B. Sutton. The $S00 note given by Balenseifer remained unpaid at the time of this transfer to Sutton, but he immediately paid said note, and on the nineteenth of March a patent was issued to him by the state. Plaintiff subsequently purchased the land from a party to whom it had been conveyed by a grantee of Sutton. In 1877, defendant, Biddle, obtained two judgments against said A. M. Post in the circuit court, in causes which had been appealed to that court from a justice of the peace. Defendant, Calender, acted as attorney for Biddle in obtaining these judgments, and he entered in the record of the judgments notices that he claimed liens for his services in obtaining them. At about the time of the transfer of the land contract to Sutton, it was agreed between him and Calender that he would execute bonds for the stay of execution on the judgments, and, in the consideration of his doing this, that Calender would release the land from the lien of the judgments. In pursuance of this agreement Sutton executed bonds in the ordinary form for the stay of execution on said judgments, which, by the request of Calender, as attorney for Biddle, indorsed thereon, the clerk accepted and approved and recorded, as required by the statute, and Calender entered on the record of the judgments releases of the land from the lien thereof, which he signed as attorney for Biddle. Plaintiff alleges in his petition that Biddle is claiming a lien on the land by virtue of said judgments, and that Calender is claiming a lien thereon by virtue of his attorney’s lien, and the relief demanded is that his title to the land be quieted against their adverse claims. Defendant, Biddle, denies that Calender had any authority to release the interest of Post in said land from the lien of said judgments, and he claims that, if the lien of the judgments was released, he has a lien on the land under the bonds of Sutton for the stay of execution. Calender’s claim is that he had an equitable lien on the land by virtue of his attorney’s lien, and that this was not extinguished by the release of the lien of the judgment.

attorney’s ' lien: release umdsfromyof {jenSdis-t: charged. I. The first question to be determined is whether the lien of the judgments on the land was divested by the releases entered in the judgment records by Calender. It is contended by defendant that an attorney has . d n0 au^lonty> by virtue of a general employment Prosecnte a claim to judgment and enforce collection thereof by the ordinary processes, (except on payment of the claim,) to satisfy or release a lien by which it is secured. This position is probably correct. At all events, its correctness may be conceded for the purposes of this case. We are satisfied by the evidence, however, that Calender had special instructions from Biddle, which authorized him to do what he did do in the premises. The claims against Post were regarded by both Calender and Biddle as doubtful. The debtor was practically insolvent. He had an equitable interest in the land, it is true, but this interest was subject to forfeiture at any time at the option of the university trustees. The $800 note ivas long past due, and he had no means to pay it. That the lien on his interest in the land was not regarded as of much value, is shown by the fact that, while the judgment had been obtained more than three years before the contract was transferred to Sutton, no steps liad- been taken to enforce it. Biddle had instructed Calender to do the best he could with the claims, and we have no doubt but that he thought he was doing this when he agreed to release the lien of the judgments, and accept in lieu of it such security as the undertakings of Sutton would afford.

We are very clear, then, that Biddle has no lien or interest in the land under the judgments. And we are equally clear that Calender does not have a lien on the land by virtue of his attornery’s lien. ITis lien undoubtedly gave him interests in the judgments, and perhaps he might enforce it against the property on which the j udgrnents were liens. But, having himself entered the release of the lien of the judgment and made it a matter of record, he cannot now be permitted to assert, as against a subsequent purchaser of the property, a lien or interest by virtue of the judgment.

2. exbcuRonds£orao-: fflecUwagreeSeoirfgiit:UOt laudoisurety, II. The remaining question is whether a lien was created by the bonds given by Sutton. It will be borne in mind that the patent issued by the state to Sutton was issued the next day after he became surety for the stay of execution. It is provided by section 3064 that, when the surety is accepted by the clerk and the bond is approved and recorded, it has the force and effect, of a judgment confessed against the property of the sureties. If, then, the bonds in qucstionliave the force and effect of bonds for the stay of execution, it is very clear, we think, that when Sutton became the owner of the land they became liens upon it.

It is contended by plaintiff, however, that, as the judgments-were rendered in the circuit court on appeal, stay of execution thereon could not be taken under the statute, (Code, §• 3061), and for this, and the further reason that the bonds were not given until long after the expiration of the period for the1 taking of a stay, they cannot be regarded as bonds for the-stay of execution, but simply as the undertakings of Sutton to pay the judgments. The answer to this position, how., ever, is, that the instruments were intended by Sutton as-bonds for the stay of execution on said judgments, and were-accepted and approved and recorded as such by the clerk. And it has been held that the clerk acts judicially in accepting; and approving and recording such bonds, and that his action cannot be questioned in a collateral proceeding. Maynes v. Brockway, 55 Iowa, 457. This holding is conclusive of the question. The judgment of the circuit court, in so far as it quiets the title to said real estate in plaintiff as against the lien created by said stay bonds, is erroneous.

Reversed.