Huntington v. Jewett, Tibbets & Co. , 25 Iowa 249 ( 1868 )

"Dillon, Oh. J.

l. action ov legal title. By the pleadings each party claims ■the legal title. No equitable issues are made. Both parties claim under one Joseph MoCloy, by virtue of different execution sales and sheriff’s deeds. The judgment under which the plaintiffs claim title, and one of the judgments under which the defendants claim title, were rendered on the same day. But plaintiffs’ sale was the elder one, and this sale, assuming its regularity and had Joseph McOloy been possessed of the legal title, would, under the doctrine recognized in Cook & Sargent v. Dillon (9 Iowa, 407), give to the plaintiffs the title as against a subsequent sale under a judgment of equal date. The other judgment under which the defendants claim is junior to the plaintiffs’. But, anterior to the rendition of any of these judgments against Joseph McOloy, he had conveyed the property in question to Samuel Me Cloy, and this conveyance was duly recorded. The legal title was in Samuel at the time the sheriff’s sale was made to the plaintiffs.

Before the defendants’ sales were made, decrees had been obtained declaring the deed from Joseph to Samuel McOloy fraudulent and void as to the judgments under which defendants claim title, and afterward sales under their judgments were made, and in due time defendants procured deeds from the sheriff. On the trial, the plaintiffs offered in evidence their deed from the sheriff, and also the record of other deeds and the book of original entries, showing title in the judgment defendant, Joseph McOloy. This made a prima faeie case for the plaintiffs.

Defendants introduced in evidence the record of the deed from Joseph McOloy to Samuel McOloy, made and recorded prior to rendition of the judgment, which was the basis of the plaintiffs’ sale; also the judgments, decrees, sheriff’s deeds, etc., under which they claim title.

It is not necessary to determine whether the plaintiffs’ objections to the validity of the sheriff’s sales,, under which defendants claim, are well grounded or not.

The plaintiffs must recover on the strength of their own title. Under the pleadings they must show the legal title to be in themselves.

This they apparently did. But when the defendants introduced the deed from Joseph McOloy to Samuel, antedating the rendition of the plaintiffs’ judgment, this showed the legal title to be as against the plaintiffs in the said Samuel.

The plaintiffs did not show that they had taken any steps to have this deed declared fraudulent.

They did not offer to show (even were this conceded to be competent in this form of action) that the deed to Samuel was fraudulent, in fact, as to them.

2. Judgment : conveyance. The argument made by the plaintiffs’ counsel in reply to this objection to their recovery, is, “ that it was not necessary, for the reason that the defendants J 7 produced two solemn adjudications ^g court5 declaring it to be void.” This argument has no force. The plaintiffs were not parties to the suit in which the decrees were rendered. Those decrees only decided the deed to be fraudulent as to the two creditors of Joseph McOloy, who filed bills for that purpose, .and under whose judgments defendants derive title. It may have been fraudulent as to those two creditors, and not as to the plaintiffs, who, for ought that appears in the present case, may have been subsequent creditors, without any right to complain of the deed from Joseph to Samuel McCloy. Hook v. Mowre, 17 Iowa, 195, 202.

Certain it-is, that, as between plaintiffs and Samuel McOloy, the legal title is in the latter. That such title is fraudulent as to the plaintiffs has never been established, and this should properly be established in a suit to which the said Samuel and the plaintiffs are parties.

Affirmed.