
    Kalona Savings Bank, Appellant, v. Moses I. Eash, et al., Appellees.
    Descent and distribution: character of heir’s estate: rights of creditors. An heir takes the same interest in real property which the deceased possessed, and where the ancestor had a fee simple title a judgment against the heir attaches to his interest and may be enforced by a general execution. The powers of a court of equity cannot be invoked to determine such interest and subject it to a satisfaction of the judgment.
    
      Appeal from Johnson District Court.— Hon. O. A. Byington, Judge.
    Tuesday, November 20, 1906.
    Petition for rehearing dismissed Wednesday, February 6, 1907.
    Action in equity to have the interest of the defendant Moses I. Eash in certain lands established and set apart and subjected to the payment of a judgment held by plaintiff. There was a demurrer to the petition which was sustained. Plaintiff refusing to plead over, there was a judgment in favor of defendants dismissing the petition, and for costs. Plaintiff appeals.
    
      Affirmed.
    
    
      John J. Ney and George B. Holbert, for appellant.
    
      A. B. Maine, M. J. Wade, and J. G. Marner, for appellees.
   Bishop, J.—

The substance of the petition was as follows: That in January, 1904, plaintiff obtained a judgment in the district court of Johnson county against said defendant Moses I. Eash for the sum of $100, interest and costs, arid with an allowance of a general execution. That Magdalena Eash, mother of said Moses, died in Johnson county, March 1, 1905, leaving certain particularly described real estate, belonging to her, and not exempt, and subject to the payment of debts, situated in said county. That said Magdalena Eash left as her sole and only, heirs said Moses I. Eash and Isaac Eash, her sons, and Eli Yoder and Magdalena Yoder, minors, her grandehildrén. That Eli Stutesman is administrator of the estate of said Magdalena Eash. That said Moses I. Eash is the owner in fee simple of an undivided one-third of said land, subject only to the right of the administrator to sell the same to pay debts. That Noah Yoder claims some interest in said lands. The petition then declares that a lien arose on March 1, 1905, in favor of plaintiff against the interest of 'said Moses I. Eash in said lands. And it is added that plaintiff has not been made a party in any way to the proceedings in probate in the matter of the estate of Mrs. Eash. The prayer of the petition is that the court “ determine the interest of Moses I. Eash in the land described, and set apart and subject the same to the payment of the judgment hereinbefore referred to this plaintiff,” and for general equitable relief. The demurrer challenged the petition generally as stating no grounds for equitable relief; and further that it was not made to appear that the estate of Magdalena Easb had been settled and tbe interest of Moses I. Easb determined, and as tbe interest of Moses I. Easb is subject to the proceedings for tbe settlement of said estate, and as tbis can only be determined in probate, tbe court bad no jurisdiction of tbe subject-matter.

Tbe demurrer was rightly sustained. Leaving out of view for tbe moment the probate proceedings, and tbe interests to be protected therein, tbe situation is precisely what it would have been bad Mrs. Easb in her lifetime conveyed to Moses an undivided one-third; in legal contemplation her death operated to convey to tbe latter her interest and title to tbe land. As alleged in tb© petition, tbis was an absolute title in fee simple. If that be material, it was also a legal title as distinguished from an equitable title. Tbis must be so because in tbe case of a descendible interest tbe character of tbe estate held by tbe ancestor is tbe character of tbe estate cast upon tbe heir. Tbe incident of descent works no transformation in tbe quality of tbe title. Tbis being true, plaintiff’s judgment at once became a lien and accordingly was enforceable by levy and sal© under general execution in tbe manner common to judgments at law. Having an adequate remedy at law, there could be no excuse for invoking the powers of a court of equity. It is fundamental doctrine that in such cases equity will turn a deaf ear. Hill v. Denneny, 106 Iowa, 726. We may concede that where title rests upon equitable grounds, and is shrouded in uncertainty, the doors of a court of equity on proper allegation may be open to one possessing a property interest in tbe land, to tbe end that tbe title may be measured, defined or quieted. But a judgment lien bolder has no property interest in tbe lands of his debtor. Ind. Dist v. Werner, 43 Iowa, 643. Tbe right be possesses is simply to resort to a levy and sale thereof to satisfy bis judgment demand. This he may do whether the interest of bis debtor in the land is legal or equitable. And, if tbe interest is equitable, it is immaterial as between the parties whether the interest appears of record or not. Code, section 3801; Bartle v. Curtis 68 Iowa, 202; Lathrop v. Brown, 23 Iowa, 40.

It will he observed that the allegation is made that one Yoder has some interest in the land. And from this, with perhaps the additional fact that Mrs. Eash’s estate still remains unsettled, counsel for appellant urges that the interest of Moses I. Eash must therefore be regarded as equitable in character, and not only this, but that plaintiff’s judgment lien must be regarded as equitable; accordingly that plaintiff is not restricted to the remedy of' ordinary proceedings under general execution. This is not quite understandable. In the first place, we cannot see how the bare allegation that Yoder claims some interest,- whether legal or equitable the petition does not advise us, can be. given effect to convert for the purposes of present consideration what would otherwise be a legal estate into an equitable estate.' Nor can the unsettled condition of the estate matter be given such effect. As alleged, neither matter goes to the quality of Eash’s estate, but rather to the possible quantity. So too, it is not clear to us what is meant in this connection by an equitable lien. A judgment lien is established in full force and effect the moment the judgment is rendered; to that end, it requires no aid from a court of equity. And it attaches eo instanti to any estate, legal or equitable, subsequently acquired by the debtor. As we have seen, equity will not enforce it except upon showing that legal proceedings are impotent for the purpose.

But counsel says that a “ judgment creditor before sale has a right to clear up doubts, make that which is remote or obscure present, clear and certain, and ascertain and fix the rights and interest of all persons claiming to own real estate upon-which he asserts a lien, certain as a decree in equity can declare them before a sale.” The proposition is somewhat startling to say the least. It is the equivalent of saying that' without any allegation of insolvency a judgment creditor may fix bis eye upon, certain real estate, tbe property in fee simple of bis debtor, and respecting wbicb sucb debtor bas done no act in denial of or affecting bis title, and may then go into equity, and have tbe title of bis debtor in sucb property bounded and quieted by decree' before taking any step to subject tbe same to tbe payment of bis debt. To sustain bis position, counsel places reliance on Code, sections 3977, 3978." These sections relate to levies of execution on personal property, and tbe rule thereof is without analogy. We are also cited to Code, section 4087 et seq., authorizing what is commonly known as a creditor’s bill.” But a creditor’s bill is not maintainable except where legal remedies have proven ineffectual, or there is an affirmative showing of insolvency. Peterson v. Gittings, 107 Iowa, 306. One office of tbe bill is to uncover property wbicb tbe debtor bas sought by fraud or concealment to place beyond tbe reach of, bis creditors, and another is to subject to tbe payment of plaintiff’s judgment equitable assets or cboses in action of tbe debtor, wbicb are not reachable by general execution. Here no fraud or concealment is alleged, and there is nothing to indicate that Eash took anything other than the legal title to tbe property which was in tbe mother, and which, by tbe law of inheritance, was cast upon him at her death. If tbe interest thus derived was in fact equitable in character, and not reachable by execution, it was for plaintiff to allege tbe facts which brought bis case within tbe domain of equity. With tbe probate proceedings still pending, it was not for a court of equity to step in and work interference by attempting to measure tbe interest of an heir in tbe real property. Any finding would, of course, be subject to tbe right of creditors pursuing their remedy through tbe probate court to take any or all sucb real estate. We do not understand counsel for appellant to controvert this proposition. •

We think there was no error, and tbe judgment is affirmed.  