Bailey v. McGregor , 46 Iowa 667 ( 1877 )

Beck, J.

I. It may be admitted that Margaret J. Tuttle acquired title to the land with the fraudulent purpose, on the part of herself and husband, to defeat his creditors and without consideration, although we think the evidence falls far short of establishing this conclusion satisfactorily. The testimony conclusively establishes, in our opinion, that plaintiff purchased the land for a sufficient consideration paid to Mrs. Tuttle, without notice of the informality of the title on account of the alleged fraud of his grantor, and without actual notice of the levy of the attachment at the suit of defendant upon the land. The testimony uj>on this branch of the case points only in the direction of plaintiff’s good faith, entire ignorance of the alleged fraud, and the payment of a full or a sufficient consideration for the land. The.evidence of himself, and of Tuttle and Mrs. Tuttle, is, explicitly and clearly, to this effect. There is no contradictory testimony, excepting the statement of a witness of an indefinite recollection that plaintiff said, in a conversation in presence of defendant, he purchased the land of Tuttle. But the defendant himself fails to corroborate this testimony. The witness speaks of the conversation as one to which he gave little attention and in which he had no interest. The positive and direct evidence of plaintiff’s witnesses cannot be overcome by testimony of this character.

1. nottce: atpendens.4'113 II. It is shown that, at the time plaintiff bought the land, he had heard that defendant had brought suit against Tuttle, hut he was not informed that it was by attachment, or that it in any way related to the land in question, nor was he informed of any matter connected with its merits. He then lived in California. In our opinion this information-was not of a character to put him upon inquiry. The mere fact that a husband is sued cannot be regarded as threatening danger to the wife’s land. The highest degree of prudence would not have dictated inquiry on the part of plaintiff to ascertain if the suit related to or affected the land he was about to purchase.

2. —:-: Rook. III. Code, Sec. 3022, provides that the levy of an attachment upon lands shall not be notice to a subsequent purchaser unless the sheriff making the levy enter the fact in the incumbrance book of the county wherein the land is situated. Such an entry was made in the proper record of Franklin county. But the attachment, it will be remembered, was in a suit wherein the husband alone was defendant. The record of an attachment against him levied upon lands as his property would not impart constructive notice to a purchaser from tire wife who held the legal title. This precise point has been ruled by this court. Eldred v. Drake, 43 Iowa, 569; Farmers Nat. Bk. of Salem v. Fletcher and Loomis, 44 Iowa, 252.

3 vendor and chaser :ofar' Rjgai title. IY. The plaintiff being a bona fide purchaser for value of the lands in question, and having neither actual nor construct*ve notice either the alleged frauds or of the ^evy attachment, under familiar doctrines prevailing in equity, will hold the property against the defendant, a creditor of Tuttle, if it be conceded that the deed to Mrs. Tuttle was for a fraudulent purpose.

The cause being tried de novo in this court, a decree to this effect will be entered here.

Reversed.