majority">Cole, J.

1. mechanic’s lien: when it attaches, I. The first question presented is, as to the title or interest acquired by the purchaser under the meehanic’s lien foreclosure sale. The plaintiff , . _ . T ^ m that suit was the mechanic, Luther Ellis, and the only defendant was D. B. Keys, administrator of J. W. Catlin, deceased. The lien accrued before the sale of the property by J. W. Catlin to John H. Shields, and existed upon the property at the time of the sale and conveyance to Shields. By the mechanic’s lien law, in force at that time, it was provided (Code of 1851, § 981): “Every person who, by virtue of a contract with the owner of a piece of land, performs work or furnishes material, especially for any building, and which ^material is used in the erection or reparation thereof, has a lien iipon the land, including the building, with its appurtenances, for the amount due him for work or material, against all persons, except incumbrancers by judgment rendered and by instrument recorded, before the com*307mencement of the work or the furnishing of the material.” The mechanic’s lien in favor of Ellis attached to the property before the sale and conveyance to Shields, and was, therefore, paramount to the title conveyed by the deed. Monroe v. West, 12 Iowa, 119; Carter v. Humboldt Fire Ins. Co., id. 287.

2._parties: mortgage. Catlin, having conveyed the property prior to his decease, and taken a mortgage back to secure the purchase price, the right to the mortgage debt and securUp0n Gatlin’s death, passed to his personal representative. Baldwin, v. Thompson, 15 Iowa, 504; Burton v. Hintragar, 18 id. 318. No rights, therefore, in the property passed to the heirs of Catlin; and, hence, it was not necessary to make them parties to the suit by Ellis to enforce his mechanic’s lien. . But, when the title of the mortgaged property is in the ancestor at the time of decease, the heirs should be made parties to a foreclosure suit. 2 G. Greene, 513. And, while subsequent mortgagees and purchasers are proper parties to a suit to foreclose a mortgage or enforce a mechanic’s lien (Semple v. Lee et al., 13 Iowa, 304), yet they are not indispensable parties. Street v. Beall & Hyatt, 16 Iowa, 68; State v. Eads, 15 ib. 114.

Keys, as administrator of Catlin, was a necessary and proper party to the suit brought by Ellis to enforce his mechanic’s lien. The judgment in that case conclusively established the amount due to Ellis, and by the law, the lien, as we have seen, attached to the title held by Catlin at the time the work was commenced and material furnished» leaving out of view for the present the rights of purchasers subsequent- to the time the lien attached, it is very clear, from the foregoing, that the purchaser at the sale under the mechanic’s lien, judgment of Ellis v. Keys, Administrator, took the title to the property *308■which was held by Gatlin at the time the lien attached. And that was the fee simple title.

3. — effect of lorliugRen?" II. The next question in order is, as to the effect of the judgment establishing and enforcing the mechanic’s lien in favor of Ellis, upon the rights of Shields, the subsequent purchaser, and upon the rights of Keys, administrator, under the mortgage made by 'Shields to Keys’ intestate, Gatlin.

It was held in The State v. Eads (15 Iowa, 114), that, after a sale and deed under a mechanic’s lien judgment, a-junior mortgagee, though not made a party to the suit, was concluded and could not redeem. See also the authorities there cited. The writer of this opinion, and Dillon, Ch J., without affirming or disaffirming the holding in that case, arrive at the same conclusion in this, as do Weight, J., and Beck, J., who are content to affirm and follow that case. The same result, to wit, of holding Keys, administrator of the mortgagee, or judgment creditor of the junior or subsequent grantee, concluded by the mechanic’s lien judgment, is reached and required by the special facts of this case.

It will be remembered, that Keys, administrator, was a party to the mechanic’s lien suit. It was his duty in that suit to assert and protect every right or claim which he had in or to the property, certainly if subordinate to the lien sought therein to be enforced, and the judgment in that case became conclusive and binding upon him as to every right which he did or might have asserted therein. A judgment was rendered against Keys, administrator in that suit, and the property was sold thereunder. He was thereby estopped from asserting any right to the property as against the judgment. It would be strange indeed, if Keys could issue execution upon a judgment in his favor, and sell the identical property which had just before been sold under execution against him, upon *309a lien paramount to that upon which his judgment was rendered. ' As between the purchaser under the special execution against. Keys, enforcing the mechanic’s lien, and a claim by Keys to sell the same property under a junior lien, there can be no question as to the right of such purchaser to enjoin the sale; because Keys must be estopped by the judgment against him from claiming any right adverse to it. 'And it will be rememberte that these plaintiffs have acquired the title, and stand iff the place of the purchaser at the mechanic’s lien saM“ Xyf

We conclude, therefore, that Keys was the only : sary party to the mechanic’s lien foreclosure suit, andWati the purchaser at the sale, under the mechanic’s lien judgement, acquired a title to the property, free from any right in, or equity against it, in behalf of the defendant therein.

4. dower: rClease of jndgment lien. III. Upon the death of either husband or wife, the survivor is entitled to one-third in value of the real estate of which the deceased was seized during the _ ° coverture, etc., as dower. By our statute, the husband of a deceased wife takes the same interest in her real estate, as the widow of a deceased husband takes in his, and the estate by curtesy is abolished. Kev. § 24-79. Our statute also enacts (Kev. § 2435 [1407]), “ The widow’s dower cannot be affected by any will of her husband, if she objects thereto, and relinquishes all rights conferred upon her by will.” This section, by force of the one just before cited, applies also to the rights of the husband under any will of his wife.

In this case, the wife, Margaret E. Shields, devised the real estate in controversy to her son Alexander; and, that being all her property, she made no provision for her husband, or her other children. The husband does not object to this will of his wife, but assents thereto, and waives all claim of dower in the real estate devised thereby. The defendant in this action claims, that, if the *310whole of the real estate in controversy is not subject to his execution as the property of John EL. Shields, at the least, one-third thereof, it being his dower interest therein, is subject thereto. And the question is presented, whether a person entitled to dower at his or her election may waive such right to the prejudice of creditors.

If the one-third in fee (the dower right under our statute) was cast by operation of law, at the death of the wife, upon the husband, then, such title being thereby vested in the husband, the lien of any judgment against him would attach to such title, and he could not divest himself of it to the prejudice of his judgment creditors; nor, perhaps, could he do so voluntarily, to the prejudice «of any creditors, whether they had judgment liens or not.

A j Effect of wm. •But, under the peculiar provisions of our statute, the will passes the title. at once to the devisee, subject to be divested or defeated by the objection of the party entitled to dower. If the party thus entitled do not object, the devisee, it is clear, takes by the will, and would not be held to take the title or any portion of it from the party, who might, on objection made, have become entitled to the third thereof.

From this it appears, that no absolute or positive legal rights in the property have as yet accrued to the defendant by virtue of his judgment, or the lien thereof. At most, it is but a supposed equity which would authorize the judgment creditor to control the election of his debtor, as to whether he would take under the will or the statute. Let us inquire as to the potency of that supposed equity.

Argu. 2. voinnancye!!onvey If the wife had seen fit, prior to her death, to make a voluntary conveyance of the property to her son, there is no question but that the husband might have joined in the conveyance, and thereby have defeated any claim therein after her death, either by himself or creditors. Now, suppose that the wife preferred *311to pass the title to the son by a devise, rather than by deed, and the husband consented thereto, or did not object, and does not afterward object. The title would pass just as effectually by the will as by the deed, and the creditors are no more injuriously affected by the one than the other; nor is there a more potent equity for them in the one case than in the other. It seems to us, therefore, that the creditors have not the right to control the husband as to his election to take under the will or statute, or to compel him to object to the will, and insist upon dower, in order that the same may be subjected to the payment of his debt.

The authorities cited by appellee’s counsel, in opposition to this view, do not sustain their position. The case of Tompkins v. Fonda (4 Paige’s Ch. 448) simply holds, that a widow’s dower may be subjected to the payment of her debts, and that, if she does not have it assigned, a court of equity, at the suit of creditors to subject it, will order it to be assigned, so that it may be reached by execution. The other cases cited are not as much to the point as this. They are, Lawrence v. Miller, 2 Com. 245, 254; Edmeston v. Lyde, 1 Paige’s Ch. 637; Stewart v. McMartin, 5 Barb. 438, 447.

5. husband capacity of property''1'1116 purchase on credit. IV. The next question made is, whether Mrs. Margaret E. Shields, who was a married woman, and without any separate property of her own, could by any contract acquire a title to the real estate in controversy ? She was the wife of John IT. #1 . .. Shields, the defendant m the execution, the levy of which is sought to be enjoined in this action. There is no controversy but that she is the owner and holder (provided she has the capacity to take and hold) the right or title acquired by the purchaser at the sale under the mechanic’s lien in favor of Ellis against Keys, administrator.

*312Upon the question of the capacity of married women to make contracts, in this State, and their obligations thereunder, the following points'have in substance been ruled by this court: That, where a married woman is sued at law upon a promissory note and the fact of coverture is not disclosed by the petition, an answer averring coverture, at the time of making the note, constituted a good defense to the action at law thereon. Rodemyer v. Rodman, 5 Iowa, 426. That, where a married woman had received’a bond for title to certain real estate, and given her promissory notes, signed also by her husband, as surety, in consideration therefor, she could not be made liable in an action at law upon the notes. Jones v. Crosthwaite, 17 id. 393. That, where a married woman signed a promissory note as surety, and pledged certain of her property for its payment, such property would be subjected in equity to the payment of the note. Patton v. Kinsman, 17 id. 428. That the earnings of the wife during coverture belong to the husband ; and, where the earnings have been invested in property and the title taken in her name, such property will be subjected to the payment of the husband’s debts. Duncan v. Roselle et ux., 15 id. 501; Ticonic Bank v. Harvey et al., 16 id. 141; Laing v. Cunningham, 17 id. 510. This common law rule is now changed by statute. See Laws of 1866, ch. 24. That, where the wife takes the title to property (which is really the husband’s) in her own name for the purpose of defrauding the husband’s creditors, such property will be subjected to the payment of his debts. Ticonic Bank v. Harvey et al., and Laing v. Cunningham, supra. And in the first of the two cases last named, it was expressly stated, “that in equity the wife is capable of taking real property to her own separate use, and of holding it independently of her husband.” And when the wife has separate property she may use it in trading or the like, without subjecting *313the profits to seizure for the husband’s debts. Mitchell & Sons v. Sawyer and wife, 21 Iowa, 582, and authorities there cited.

It has never been held by this court, but that a married woman could, either at law or in equity, purchase and hold the title to real estate in this State, independently of her husband and regardless of whether she had a separate estate or not. And a reference to the cases above and the authorities therein referred to will abundantly show, that, in equity, and aside from any statute, a married woman is capable of acquiring and holding real property to her own separate use. See also and especially Darby v. Callaghan, 16 N. Y. 71, and Knapp v. Smith, 27 id. 277.

In this case, the married woman, Mrs. Margaret E. Shields, at the time of her purchase, had no separate estate; but she did have a son in the military service, from whom she expected to and did receive money, a part of which was applied toward the payment of the property in controversy. Now, if, as was held in Mitchell v. Sawyer (supra),a married woman may borrow money with which to purchase real property in her own name, relying upon receiving money from her father’s estate with which to repay it, and thereby acquire and hold a perfect title in her own separate right, which facts appear from the record in that case, why may not a married mother purchase upon credit, relying upon her son’s earnings with which to pay, and also acquire a good title ?

It seems to us, even in view of the principles of equity, aside from any statutory provisions, that Mrs. Margaret E. Shields was possessed of the capacity to acquire and hold the title to the property in controversy ; and that no advantage or right results to the defendants by reason of the fact that she was a married woman at the time she acquired the title. Of course, if the purchase was made by .the. husband for his own benefit, and the title taken in *314the name of the wife to defraud creditors, or, if the wife made the purchase and used the means of the husband in the payment of the consideration, or the like, then the property could be subjected to the payment of his debts. But in this case the fraud charged in the answer is positively denied in the reply, and there is no sufficient proof, in the opinion of the majority of the court, to sustain the charge. Wright, J., not concurring. Besides, the referee bases his conclusions of law upon the incapacity of the married woman to take or hold the title to the property in her own right; and the counsel for appellees rest their argument in this court to sustain the judgment below, upon the same basis. (A supplemental argument appellees’ counsel, filed since this opinion was prepared, does make the question of fraud distinctly; but it is not necessary to examine it further than to state our conclusion as above.)

The judgment of the District Court is reversed, and the injunction made perpetual.

Reversed.

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