
    Chase v. Parker et al.
    
    1. Order oe liens: surplus. J. V. P. made a trust deed, conveying certain premises to J., in January, 1854; andinMay, 185V, made another trust deed, conveying the same premises to one W.; and in January, 1859, 0. recovered against J. V.'P. certain judgments, after which J. V. P. quit-claimed the premises to Ii. A. P., who entered into possession. In November, 1859, the second trust deed was transferred to C,, and in May, 1860, the trustee sold the premises, according to the terms of the deed, to L. A. P., and conveyed to her all the right, title and interest of the said J. Y. P.j in and to said estate. In November, 1860, the premises were sold under the first trust deed, and after satisfying the debt due to J., four hundred dollars remained in the hands of the trustee. C. caused executions to be issued on his judgment recovered in January, 1859, and levied the same by the garnishment of the trustee, upon the balance remaining in his hands. It was held:
    1. That the title of L. A. P., after the foreclosure of the second deed of trust, related back to the date of the execution thereof, and that after such sale, the judgment in favor of C. was not a lien thereon.
    2. That L. A. P. was entitled to the surplus remaining, and that it could not be applied to the satisfaction of said judgments.
    
      Appeal from Clinton District Court.
    
    Friday, December 5.
    In January, 1854, James Y. Parker and wife made a trust deed to Jacoby, to secure $400 due in four years. In May, 1857, they made another trust deed, covering tbe same premises, to one Williams, to secure about $350 to Harmon S. Wilcox, due in eighteen months. On the 10th of January, 1859, Chase recovered, in the District Court of Clinton County, three several judgments against the said J. Y. Parker and wife. October 17,1859, J. Y. P. sold, by quit-claim, the land thus incumbered, to L. A. Parker, who at once entered into possession of the same. The note secured by the second trust deed was transferred to Chase, in November, 1859, and in May, 1860, Williams, the trustee, according to the terms of the deed, sold the premises to L. A. Parker, for $235, the amount remaining unpaid, and then made her a deed conveying all the estatej right, title and interest of the said J. Y. Parker and wife, in and to said real estate. The money arising from this sale was paid to Chase. On the 7th of December, 1859, L. A. P. agreed with Jacoby, that any sale, under his deed, might be by written notice posted at the court house, instead of printed, as specified originally. On the 9th of November) 1860, tbe premises were sold under tbe first trust deed, by posting written notices, for tbe sum of $1,000, to one Boardman, wbicb, after satisfying the Jacoby debt and all cost, left about $400 in tbe bands of Fletcher, the trustee conducting tbe sale. On tbe same day, Chase procured an execution upon one of tbe judgments rendered in January, 1859, and garnished Fletcher. Tbe garnishee answered, and L. A. Parker was allowed to show cause why tbe money was not liable to the levy. Tbe above facts appear from her answer, to wbicb there was a demurrer by Chase. This was overruled, tbe court bolding that Parker’s right to tbe surplus arising from tbe sale under tbe first deed of trust, was paramount to that of Chase. Plaintiff appeals.
    
      Ü. Rich for appellant.
    
      A. R. Cotton for appellee.
   Wright, J.

No point is made as to tbe method of raising tbe questions here involved. Under tbe demurrer, tbe court below held, that Chase was not entitled to tbe money in tbe bands of tbe trustee (Fletcher), but that tbe claim of Parker (tbe vendee and purchaser under tbe second trust deed) was superior. And this ruling, we think, was correct

It will be observed that tbe appellee does not rest her claim alone upon her purchase from J. V. Parker. If she did, then, as tbe judgment of appellant was a lien upon tbe premises covered by tbe trust deeds, prior to her purchase, it would, in equity, attach to tbe surplus, and tbe levy thereon would give a priority or paramount lien to any claim of appellee. By such purchase, she stood in no better position than her vendee. If tbe property bad remained in bis bands, tbe surplus would be liable to appellant’s levy. And appellee, by her deed from tbe debtor, took tbe property subject to tbe same liabilities. Tbe trust deed to "Wilcox, however, was a prior lien to appellant’s judgments. And when appellee purchased under that, she took the property divested of such judgment liens, and subject only to the trust deed to Jacoby. It is true, that but for the intervening deed to Williams, for the benefit of Wilcox, and the rights arising from the sale thereunder, the judgment lien would have been continued against the surplus in the hands of the trustee, and could, in equity, have been enforced. But by her purchase under such second trust deed, the appellee took the land divested of any lien arising from the judgment, for this was a lien upon the right of redemption, and nothing more, and as this lien was extinguished by the sale, the judgment creditor could claim nothing from a sale made under a prior mortgage or trust deed.'

The inquiry is, does this money belong to J. Y. Parker, the judgment debtor of Chase, and'does the garnishee hold-it as his money, or does it belong to L. A. Parker, who indisputably had the whole title to the land, subject to the Jacoby trust deed. This money is the representative of the land, or of the right of the grantor to redeem the same. And suppose one-half or three-fourths of the land had been sold to satisfy the first lien, would there be any doubt but that appellee would take the other half or fourth, freed from the lien of appellant’s judgment? If so, is not her right equally clear to the remaining proceeds, which represent such land?

Affirmed,  