
    W. L. Witmer, Appellant, v. T. J. Shreves.
    1 Equitable mortgage: assignment of mortgagor’s interest: execution sale. Where the grantee’s name in a deed was erased and another inserted and the deed was then delivered to him as security for part of the purchase price advanced, with a separate contract back acknowledging receipt of the deed and agreeing to hold the title in trust and to reconvey to the. real grantee upon payment of the Sum advanced, such substituted grantee held the apparent legal title and both the real grantee and those claiming under her were bound by the agreement as thus completed, although the method adopted for creating the trust may have been irregular; and an assignment of the contract by the real grantee extinguished her remaining interest and vested the assignee with title subject to the equitable mortgage, so that a subsequent judgment against the assignor was not a lien upon the property and the purchaser at execution sale acquired ho interest therein.
    2 Execution sales: unrecorded instruments: notice. A purchaser at an execution sale who acquires no interest in the property by the sale, can not claim the protection of the statute against the effect of an unrecorded instrument of which he had no notice.
    3 Execution sale: discrepancy in names. Where the title to prop-erty stood in the name of Lena B. Reeves a sale thereof under a judgment against Belle Reeves would not pass title, in the absence of any proof of identity.
    
      Appeal from Polk District Court — Hon. Hugh Brennan, J udge.
    
    Wednesday, March 10, 1909.
    
      ActioN to quiet title to a small parcel oí Luid. Defendant claimed an interest in the land as purchaser thereof at sheriff’s sale under a judgment in his favor against Belle Beeves, whom he alleged to have been the owner of the property at the date of the recovery of his judgment against her. There was a decree quieting title in defendant against the plaintiff, but allowing plaintiff the right to redeem from defendant’s execution sale. Plaintiff appeals. —
    Reversed.
    
      R. P. Hudson, for appellant.
    
      Siewart & Anderson■, for appellee.
   McClain, J. —

In August, 1905, the tract of land to which this controversy relates belonged to Mrs. Emma E. Domback, and, in pursuance of negotiations through one Davis for the purchase thereof in behalf of Lena B. Beeves, a warranty deed in which said Lena B. Beeves was named as grantee was executed by Mrs. Domback and her husband and delivered to Davis for Mrs. Beeves. For the purpose of raising money with which to pay a portion of the purchase price for the land, the name of Lena B. Beeves as grantee was erased from the deed, and the name Max Lavine was inserted in its place with the knowledge and consent of Lavine and Mrs. Beeves, and the deed was delivered to Lavine, who executed to Mrs. Beeves an instrument in the form of an agreement, signed by both of them, in which Lavine acknowledged the receipt of a warranty deed to the property, and agreed to hold the title thereto in trust for Mrs. Beeves to secure a loan of $250 advanced by him, and to convey the property to Mrs. Beeves on payment of said loan. This contract was by indorsement on the back thereof assignea by Mrs. Beeves to Davis on December 8, 1905, for the purpose of transferring the title of the property to him, and be at that time paid to Mrs. Reeves an agreed price, part in cash and part in satisfaction of a claim against her in pursuance of an agreement for tbe purchase of said property by bim. Subsequently, and on December 12, 1905, tbe defendant in this action recovered judgment in a justice court of Polk County against Belle Reeves, a transcript of which was on tbe same day filed in tbe district court of said county. Under execution subsequently issued on this judgment tbe defendant caused tbe land -in controversy to be levied upon as tbe property of Belle Reeves, and became a purchaser thereof at execution sale. Still later Davis conveyed tbe land to plaintiff, who asks to have bis title quieted as against any claim of defendant under said sheriff’s sale.

Tbe theory of tbe defendant is that, notwithstanding tbe change of names in tbe Domback deed, Mrs. Reeves became a bolder of tbe legal title subject only to an equit•able mortgage in favor of Lavine, and that whatever may have been tbe effect of the assignment to Davis of the written instrument of agreement between her and Lavine as transferring to Davis equitable title to tbe property, defendant was not chargeable with notice thereof when be became the' purchaser at execution sale, and that the rights of Davis and of plaintiff as bis grantee are subordinate to tbe rights of defendant as execution purchaser; but defendant as purchaser at execution sale only acquired tbe title of Mrs. Reeves, whatever it may have been. At tbe time defendant’s judgment became a general lien upon any property of Mrs. Reeves she bad no title to tbe property subsequently levied upon and sold and continued without title up to tbe time of tbe execution sale. Tbe defendant acquired nothing by such sale. Churchill v. Morse, 23 Iowa, 229; Spaan v. Anderson, 115 Iowa, 121. The deed of tbe Dombacks reciting Mrs. Reeves as grantee may have been effectual by delivery to Davis as her agent to transfer the legal title to her, but by the arrangement entered into between her and Lavine the title was apparently vested in the latter as trustee, and this apparent title could not thereafter be questioned by Mrs. Eeeves or persons claiming under her, so far as the rights of Lavine holding apparent title in trust for Mrs. Eeeves were concerned. In other words, Mrs. Eeeves and those claiming under her became bound by the arrangement under which legal title was apparently placed in Lavine, and, however irregular may have been the methods resorted to for giving Lavine the title to hold in trust as security for the money advanced by him, the legal effect was to consummate the arrangement which the parties intended to make. As between the 'parties a formal deed is not essential to the transfer of title. Walkley v. Clarke, 107 Iowa, 451. After this arrangement was perfected, the rights of Mrs. Eeeves were evidenced by the written instrument of agreement entered into between her and La-vine, and the assignment of this written instrument by her to Davis with the intent and purpose of transferring to Davis for valuable consideration the remaining interest of Mrs. Eeeves in the property, whatever it might be,' was effectual to divest Mrs. Eeeves of any such interest. After this assignment Davis in effect held the legal title subject to Lavine’s equitable mortgage. This was the situation of the parties when the defendant recovered his judgment, and it is apparent therefore that such judgment did not become a lien on this property, for Mrs. Eeeves had at that time no interest whatever therein either legal or equitable.

As Mrs. Eeeves had neither legal nor equitable interest in the property, apparent or real, when defendant’s judgment was filed in the district court, and continued without any interest up to the 'pretended levy and sale under such judg- . ment, defendant acquired nothing thereby. Defendant is in no situation to claim that be is protected by the recording act against tbe transfer from Mrs. Eeeves to Davis by an instrument not recorded. Defendant must bave become tbe purchaser of some apparent or real interest of Mrs. Eeeves to be protected against tbe effect of an unrecorded instrument of wbicb be bad no notice. See Code, section 2925.

We bave omitted to make any reference to tbe fact that defendant’s judgment was against Belle Eeeves, ,and tbe Domback deed named Lena B. Eeeves as grantee. In tbe view wbicb we take of tbe case it is immaterial whether these names designated tbe same person. We find nothing in tbe record to prove their identity, and this discrepancy would in itself be sufficient to defeat defendant’s claim.

Plaintiff was entitled to tbe relief asked in bis petition, and tbe court erred in entering a decree for tbe defendant. — Reversed.  