
    Lippencott, Johnson & Co. v. Wilson et al.
    1. Judgment: lieu. A judgment is a lien upon an equitable interest in real estate.
    2.-:-: judgments op same date. Where two judgments are rendered upon the same date, which are a hen upon real estate for which the debtor has a bond for a deed, the judgment creditor who first causes execution to be levied and the property sold thereunder takes precedence over the other; and his title thus acquired cannot be defeated by an action in equity, to subject the debtor’s interest to the lien of the judgment.
    
      Appeal from Winneshiek District Gov/rt.
    
    Monday, April 26.
    This is an action in equity to subject tbe equitable interest of tbe defendant, S. 0. Wilson, in certain real estate, the legal title of which is in tbe defendant, Benjamin Austin, to tbe lien of a judgment recovered by plaintiffs against said Wilson.
    Tbe petition alleges that on tbe 20th of February, 1873, the defendants, tbe Ellisons, recovered judgments against tbe sai'd S.0. Wilson, and that on the 20th of February, 1873, they caused general executions to issue on their judgments, and that at the sheriff’s sale had thereunder they bought the property in controversy on the 24th of May 1873.
    Plaintiffs ask that the. levy and sale be declared void, and be set aside.
    The following are stipulated as the facts in the case:
    “1. The judgment against S. 0. Wilson, in favor of Lip-pencott, Johnson & Oo., and the judgments of defendants, J. B. Ellison & Sons, E. B. Ellison and W. T. Ellison, were all rendered on the same day, to-'wit: February 18th, 1878.
    2. On the 20th day of February, 1873, the said J. B. Elli-ison & Son, E. B. Ellison and W. P. Ellison, had writs of general execution issued on their respective judgments, which, on the same day, were levied on the real estate in controversy.
    3. On the 24th day of May, 1873, by virtue of said executions, and writs of venditioni exponas thereon issued, and in pursuance of said levies, the said premises were sold by the sheriff of said county.
    4. The legal title of the real estate in question was held by Benjamin Austin, at the date of the rendition of said judgments, by virtue of a record title from United States Government, and has been so held by said Benjamin Austin ever since.
    5. The equitable title to said real estate was, at said date, and still is, held by said S. O. Wilson, under a bond for a deed from said Benjamin Austin, fully paid.
    6. The plaintiffs, Lippencott, Johnson & Oo., on the I4th day of May, 1873, duly commenced this action in equity, against said S. O. Wilson and Benj. Austin, under Chapter 127 of the Revision of 1860, to subject said real estate to the lien of their said judgment.
    7. The plaintiffs, Lippencott, Johnson & Oo., on the 25th day of August, 1873, duly made defendants, J. B. Ellison & Sons, E. B. Ellison and W. P. Ellison, parties to said suit, and .served them with notice as required by law.
    8. The plaintiffs, Lippencott, Johnson & Oo., on the 24th day of October, 1873, recovered judgment against said S. 0.
    
      "Wilson and Benjamin Austin, in said action, and a decree was duly entered thereon, subjecting said property to the lien of said judgment, referred to in paragraph 1 thereof.”
    On the 24th day of June, 1874, the court adjudged that the decree heretofore entered herein, October 24th, 1873, against the said Ellisons, on their default, be set aside, and that the liens of the several judgments of February 18th, 1873, in favor of the Ellisons respectively, and against S. O. Wilson, are prior to the lien of the judgment in favor of plaintiffs, and that plaintiff’s supplemental petition be dismissed.
    Although the agreed statement of facts does not so show, yet appellant’s counsel in liis argument concedes that the bond for a deed from Austin to Wilson was recorded. Plaintiffs' appeal.
    
      M. P. Hathaway, for appellants.
    
      E. E. Cooley, for appellees.
   Day, J.

Plaintiffs claim that they are entitled to the rewards of superior diligence because of the commencement of an action in equity, to subject the equitable interest of S. O. Wilson in the property in controversy, to their judgment; whilst the defendants insist that they are entitled to preference because of their execution, levy and purchase.

• In this state a judgment is a lien upon the equitable interest of a debtor in real estate. Harrison v. Kramer et al., 3 Iowa, 543; Cook & Sargent v. Dillon et al., 9 Iowa, 407.

It has also been held that, “ As between judgment creditors whose liens are of the same date, he who first takes the property in execution has the preference to be first paid out of its, proceeds. And this is the rule, whether the property be real or personal estate, or choses in action not subject to actual manual seizure, and which by our statute are taken and seized only by garnishment.” Cook & Sargent v. Dillon, 9 Iowa, 407, (413.)

It is not possible to apcept these propositions, and to accede to them their logical consequences, and at the same time to deny to the Ellisons the prior and better right to the property in controversy, under the facts stipulated and admitted in argument. The case upon which appellants mainly rely, Bridgman & Co. v. McKissick, 15 Iowa, 260, bears no analogy to the present. In that case James McKissick had purchased real estate, and taken the title in the name of his wife, to defraud his creditors. The legal title of record was in his wife, and there was nothing to show that James McKissiek had any interest in the property. In fact, having procured the conveyance to be made to his wife for a fraudulent purpose, he had no interest that he could enforce as against her. Between them, the conveyance was absolute.

Notwithstanding a sale of the husband’s interest under execution, yet the wife might have conveyed the property to an innocent purchaser, and cut out the rights acquired by the purchaser at sheriff’s sale. In order to prevent the alienation of the property, and to secure an interest therein having any tangible, character, or any real value, it was necessary to resort to a court of equity, to have the deed to the wife declared fraudulent, and the property made liable to the husband’s debts.

Hence the court in that case very properly held that the party who first invoked the aid of the court, which alone could confer any substantial interest in the property, was entitled to priority on the ground of his superior diligence. And it is to be observed that the decision is expressly limited to cases of fraudulent conveyances, and has no application to the case where the equitable interest of an honest debtor is sought to be reached. In the case at bar the equitable interest of S. O. Wilson was apparent of record.

" Austin could not convey it to an innocent purchaser, because of the record of the bond for a deed. Wilson could not assign the bond, so as to displace the judgment, for the judgment was a lien upon his equitable interest. The purchaser then at the sheriff’s sale could acquire a tangible interest in the property, an interest which no subsequent alienation could defeat. It was not necessary to resort to a court of equity to prevent the alienation of the property. •

The interest of the judgment defendant, Wilson, passed to the purchaser at the sheriff’s sale. All that remained, or was necessary for such purchaser to do, was to enforce the conveyance of the naked legal title from Austin. Now it does seem that, to hold this interest of the purchaser at the sheriff’s sale liable to be defeated at any time by the equitable action of a creditor to have the debtor’s interest subjected to his judgment, is simply to declare that the lien of a judgment creditor upon the equitable interest of the debtor iú real estate, lacks all the essential elements of a lien, and is one only in name.

The judgment of the court below should be

AFFIRMED.  