PRESTON J., Dissenting.
I respectfully dissent from the views announced by Mr. Justice Curtis in the above cause. The undisputed facts disclosed by the findings are that the deed in question was made by Robinson to his wife solely to qualify her as a bondsman upon the bail bond required of him in the federal court. The understanding
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was that when liability ceased on said bond the property was to be reconveyed. No consideration other than this called the transaction into being.
The opinion holds that inasmuch as the wife was required to take an oath that she was worth the amount of the bail over and above all her just debts and liabilities and property exempt from execution, she of necessity took the whole beneficial interest in the property under this deed and the husband must have so intended it.
But no contention is made that the transaction was anything other than as found by the court, nor that any rule of public policy condemned such an arrangement, nor that any rule of estoppel would prevent the husband from demanding the return of said property upon the cessation of liability upon said undertaking. This being true, no reason appears for holding that the wife received anything more than a qualified estate subject to defeat upon the release of her liability upon the bond. It should also be here noted that within two days after making this deed to her, her liability on this undertaking did cease, the defendant Shannon being substituted for her thereon. The said husband and wife conveyed the property covered by said deed to him to secure him for the assumption of said liability. The effect of this transaction has been noted in the opinion.
Whatever estate the wife may have received, if any, under this deed, it was, when she was released from said liability, divested out of her. The release from liability left her with only the bare, naked, legal title. The principles of law controlling here are well understood and everywhere recognized. “ . . . the judgment . . . becomes a lien upon all the real property of the judgment debtor . . . owned by him at the time, or which he may afterwards, and before the lien expires, acquire. The lien continues for five years. . . . ” (Code Civ. Proc., see. 674.)
“The law is well settled that the lien of a judgment does not attach to a naked title, but only to the judgment debtor’s interest in the real estate; and if he has no interest, though possessing the naked title, then no lien attaches.”
(Iknoian
v.
Winter,
94 Cal. App. 223 [270 Pac. 999]; see, also,
Riverdale Min. Co.
v.
Wicks,
14 Cal. App. 526 [112 Pac. 896] ;
National Bank of Pacific
v.
Western Pac. Ry.
[386]
Co.,
157 Cal. 573 [21 Ann. Cas. 1391, 27 L. R. A. (N. S.) 987, 108 Pac. 676].)
“The interest which the lien of judgment affects is the actual interest which the debtor has in the property, and a court of equity will always permit the real owner to show that the apparent ownership of another is or was not real; and when the judgment debtor has no other interest except the naked legal title, the lien of judgment does not attach.”
(Iknoian
v.
Winter, supra,
citing Freeman on Judgments, 4th ed., sec. 357, and Black on Judgments, 2d ed., secs. 420, 421.)
This principle has been expressed in various ways by the courts. In
Eagle
v.
McKown,
105 W. Va. 270 [142 S. B. 65, 67], the court says: “Where statute enactments do not interfere, a judgment creditor can acquire no better right to the estate of the debtor than the debtor himself had when the judgment was recovered; and his lien will be limited to the actual interest of the judgment debtor in the property.”
Again: “The lien of a judgment is subject to prior liens, and will not prevail over prior equitable claims on the same property. It is subject to every equity which existed against the land in the hands of the judgment debtor at the time of the rendition of the judgment, and courts of equity will protect the equitable rights of third persons against the legal lien, and will limit such lien to the actual interest which the judgment debtor has in the estate.” (15 R. C. L., p. 798, sec. 255.)
In
Knaak
v.
Brown,
115 Neb. 268 [51 A.
L.
R. 242, 212 N. W. 434], it is said: ‘ ‘ Indeed, this bank by the filing of its transcript, obtained a lien. But its lien attached only to the actual interests of the judgment debtor, Van Valin, in the mortgaged premises, and was subject to all existing equities, whether of record or not. Judgment lien merely conferred the right to levy upon the property in litigation here to the exclusion of all other adverse interests subject to the judgment. (Citing cases.) ‘A judgment lien is, in equity, but a charge pon the title held by the defendant when the lien attaches, or which is subsequently acquired. It can only hold the legal estate subject to the equity. “It is well settled that a judgment lien on the land of the debtor is subject to every equity which existed against the debtor at the rendition of the
judgment;
and courts of equity will
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always limit the lien to the actual interest of the judgment debtor.” . . . Thus, if through an innocent mistake the holder of a trust deed has released it as to more of the land than was intended, the lien of an intervening judgment is subject to the equitable right to have the release reformed, notwithstanding a recital in it of full payment. ’ 2 Freeman, Judgm. (5th ed.), p. 1997, sec. 950, and cases cited.”
Again, “It is generally conceded that the lien of a judgment does not attach to land to which the judgment debtor has only a naked legal title, unaccompanied by any beneficial interest, the equitable and beneficial title being in another. A judgment lien attaches only to the interest which the debtor has in real estate, and if he has no actual interest, though possessing the legal title, then no lien attaches.” (15 R. C. L., see. 270, pp. 807, 808. See the same quotation in 117 Am. St. Rep., p. 782.)
Still more to the point and controlling in this case is the language found in
Hunter
v.
Citizens' Sav. etc. Co.,
157 Iowa, 171 [Ann. Cas. 19150, 1019, 1020, 138 N. W. 476], as follows: “But a judgment lien has no effect to create any property right in the judgment creditor. It does not attach to the land as distinct from the title held or obtained by the debtor. His lien simply gives him a prior right as against a general creditor to enforce his claim by levy upon and sale of the debtor’s legal or equitable estate in the land, but he cannot seize, sell or acquire any greater interest than is owned by the debtor himself. If there be any equities, limitations, or conditions attaching to the debtor’s title which would defeat it in the hands of the debtor himself, it would be subject to the same infirmities and liabilities in the hands of the purchaser under such levy. Even if the debtor has some real or apparent interest in land to which the lien is attached, yet if his title .has been so qualified in the instrument creating it that it may be defeated or divested by a power intrusted to another, and it is in fact thereafter so defeated or divested, the lien falls with it, and the creditor cannot pursue the property in the hands of a third person who has acquired it through the exercise of that power. This is not only" the reasonable rule, but is, we think, sustained by all the authorities. The thought will perhaps be more clear if we keep in mind the fact that a judgment lien does not attach to the land, but to the
[388]
judgment debtor’s interest in it, and, if that interest.be subject to any infirmity or condition by reason of which it is eliminated or ceases to exist, the lien attaching thereto ceases with it.
(Beaver
v.
Ross,
140 Iowa, 154 [17 Ann. Cas. 640, 20 L. R. A. (N. S.) 65, 118 N. W. 287];
Thomas
v.
Kennedy,
24 Iowa, 405 [95 Am. Dec. 740];
Bucknell
v.
Deering,
99 Iowa, 548
[68 N. W.
825];
Holden
v.
Garrett,
23 Kan. 98;
Shipe etc. Co.
v.
Repass,
28 Gratt. (Va.) 716;
Sinclair
v.
Sinclair,
79 Va. 40;
Snyder
v.
Martin,
17 W. Va. 276 [41 Am. Rep. 670];
Scudder
v.
Voorhis,
5 Sandf. (7 N. Y. Super. Ct.) 271.) Applying this principle, the New York court in
Moore
v.
Pitts,
53 N. Y. 86, where a lien was sought to be enforced against one Hall, says: ‘It is obvious that the lien of Gilman’s judgment could only attach to such estate as Hall had in the premises. If that estate was subject to be divested by the breach of any condition subsequent; any such breach that would divest the estate would of necessity destroy the lien.’ See, also,
Ackerman
v.
Gorton,
67 N. Y. 63;
Rose
v.
Hatch,
125 N. Y. 427 [26 N. E. 467] ;
Leeds
v.
Wakefield,
10 Gray (Mass.), 514;
Smyth
v.
Anderson,
31 Ohio St. 144;
Baker
v.
Copenbarger,
15 Ill. 103 [58 Am. Dec. 600];
Wetmore
v.
Midmer,
21 N. J. Eq. 242;
Morse v. Hackensack Sav. Bank,
47 N. J. Eq. 279 [12 L. R. A. 62, 20 Atl. 961]
; Mayo
v.
Merritt,
107 Mass. 505.”
Under the doctrine of these cases and particularly under the doctrine last above cited, whatever beneficial interest the wife may have received under this deed was subject to divestment upon her release from liability on said undertaking. This liability admittedly ceased before this action was begun; therefore, any beneficial estate she may have held fell upon the happening of that event and with it fell the lien, if any ever existed, of the judgment in question. It is, therefore, my view that the judgment of the court below should be reversed.