Opinion
07-17-1886
HOWELL v. BREWER and others.
P. V. Voorhees, for petitioner. S. H. Grey, for respondent.
On petition. Facts appear in the opinion.
P. V. Voorhees, for petitioner.
S. H. Grey, for respondent.
BIRD, V. C. S. was administrator, and, as such, sold lands. He procured G. B. to take the title, with the understanding that G. B. would convey it to S. After months or years G. B. did convey the title to S., but S. did not have the deed recorded for many years, nor until after the recovery of several judgments against G. B. For over 20 years the title stood in the name of G. B. as to all those who only had knowledge thereof from the public records. In 1876 a bill was filed for the partition of these lands, which others had an interest in, among the several owners. Under the statute a sale was had, and the land converted into money. G. B. was made a party, and his interest, if he had any, was paid into court. After the bill was filed J. B. obtained a judgment against G. B. for over $13,000. The administrator of J. B. comes in by his petition, and asks to have the money so paid into court applied in part payment of said judgment. Having obtained the judgment before the sale, it is insisted that it was a lien upon G. B.'s interest in the lands. Counsel for respondent says that G. B. had no such title or interest in the land as that the judgment at law would attach to or become a lien upon. In other words, he insists that in equity the whole interest was in S., which could not be reached by merely legal process, and that, therefore, the supposed lien upon the land was no lien at all.
But counsel omits to state the principal or more important fact in the case, which is that as to all the world, while the equitable title may have remained in S., (if his agreement with G. B. was effectual,) the legal title was unquestionably in G. B., to whom S. had conveyed it, so that the judgment was a lien upon it. Therefore, supposing that the original transaction between S. and G. B. was one which this court could recognize as proper, I have no difficulty at all in coming to the conclusion that, since there is no proof that J. B. had any notice of the conveyance of G. B. to S., the judgment of J. B. was a lien upon the lands in question, and that his administrator is entitled to these moneys. It seems very plain to my mind that this is one of the cases in which the legal title should prevail over the equitable.
I will advise an order directing the clerk of this court to pay all the moneys so deposited to the petitioner, less commissions, according to the practice of this court. The petitioner is entitled to costs.