Bidwell v. Coleman

By the Court -Berry, J. Both parties to this action deduce title to the land in question from the common source of a conveyance, in which the grantee is designated as Michael Cummings, junior. At the time of the commencement of the action in which the judgment hereinafter mentioned was recovered, and ever since, there were two persons residing in St. Paul by the name of Michael Cummings, father and son, the latter of whom was the grantee aforesaid. The judgment, which is the foundation upon which the respondent builds his title, was recovered against Michael Cummings, junior, by the name of Michael Cummings, and the execution issued thereon, with the certificate of sale and Sheriff’s deed, describe him as Michael Cummings, without the addition “Junior.” The appellant seeks to make his title through a conveyance executed subsequently to the docketing of the judgment above mentioned, in which the grantor names himself Michael Cum — 87 — mings, junior, and is in fact -the same person against whom the judgment was rendered. Under this state of facts, the appellant, claiming to be a bona fide purchaser, insists that the judgment and proceedings thereon against Michael Cummings by name, as they appear of record, were not notice to him of any lien or claim against the real estate of Michael Cummings, junior. In other words, he insists that junior was an essential part of the name, or essential to a proper designation of the judgment debtor. The point is untenable, for it is too well settled to admit of discussion, that the addition junior forms no part of a man’s name. Com. v. Perkins, 1 Pick. 387; Cobb v. Lucas, 15 Pick. 9; Kinkaid v. Howe, 10 Mass. 204; People v. Collins, 7 Johns. 553. And it is to be observed, in passing, that some of these authorities hold that even in criminal, or quasi criminal cases, where great certainty is ordinarily required, the omission of the addition “junior” is immaterial. It is further contended, on behalf' of the appellant, that no competent evidence was offered to establish the judgment of the Justice. The evidence presented for that purpose was a transcript, which is made effectual to prove the facts stated therein, by section 82, page 686, Pub. St. On the point that the transcript does not sufficiently specify the nature of the process issued by the J ustice, we have no doubt that it shows a substantial compliance with the requirements of the statute in reference to the entry which must be made upon the docket on this subject. But the principal objection urged by the appellant, under this head, is, that it does not appear that the Justice acquired jurisdiction of the person of the judgment debtor, or, rather, that it does appear that he did not acquire such jurisdiction. This objection is, of course, based upon the principle that a Justice’s Court is an inferior tribunal, and, therefore, its jurisdiction must affirmatively appear, and is not to be presumed. As shown by the transcript, the minute made in his docket, and which it is clear the Justice was authorized to make, under subdivision 11, section — 88 — 7, page 499, Pub. St., where it is provided, that he shall enter in his docket, in addition to other matters . particularly enumerated, “such other entries as may'be material,” is as follows: “Nov. 19, 1852. Summons returned, served by copy, by officer Brott.” There are two cases in which a copy may be used in effecting service. One, 'where personal service is made by reading the summons, and delivering a cojjy if rejected. The other, when personal service cannot be made, and so service is authorized to be made by leaving a copy. In the latter of these cases only can it be said that service is made by copy, for it is too plain for argument, that in the former case the service is not made by copy. "When, then, a Justice of the Peace enters upon his docket, “summons returned served by copy, &c.,” it is fair to presume that service was so made in the case and in the manner pointed out in the law. Hughes v. Mulvey, 1 S. & S. C. R., is precisely in point. See also Legg v. Stillman, 2 Cowen 418; 3 Minn. 277; 4 Ib. 407; 5 Ib. 333. We conclude, then, that the jurisdiction of the Justice was sufficiently shown by the transcript. This conclusion renders it unnecessary for us to consider another question raised on the argument, as to what the status of a Justice’s judgment may be after a transcript has been filed in the District Court; whether it becomes, to all intents and purposes, a judgment of the District Court, and enjoys the benefits of the same presumptions on the score of jurisdiction as if originally entered in the District Court, we shall not now determine. The appellant further insists that no competent evidence of a formal levy of the execution was offered before the referee, and that, therefore, the respondent failed to establish an indispensable link in his chain of title. The statute, by which it is claimed that a formal levy upon real property was rendered necessary, is repealed on page 283, Sess. Laws, 1860. It has already received a construction in Tullis v. Brawley, 3 Minn. 277, which was decided in 1859, while the statute was unrepealed, in Rohrer — 89 — v. Terrill, 4 Ib. 407, and in Folsom v. Carli, 5 Ib. 333. In tbe latter of these cases, at least, the question of the necessity of a levy was directly involved, and that part of the opinion ■ of the court, in which it is distinctly held that there need be no formal levy of an execution upon real estate, cannot be called an obiter dietrum. "Whatever we might feel called upon to do if the matter were res i/ntegra, or the law were now in force, we shall not now disturb what may properly be regarded as a rule of property. Entertaining these views, we deem it entirely immaterial what effect is to be given to the recital of levy in the Sheriff’s deed or certificate. Upon the trial before the referee, no return upon the execution was put •in evidence, but so far as it is necessary to show the facts and circumstances of the sale, there could be no better evidence than the certificate of sale prescribed by statute. This certificate is not required to be attested by subscribing witnesses, nor to be executed under seal. It is contended by the appellant, that no proof was made sufficient to establish the fact that the certificate of sale was filed with the Register of Deeds prior to the acquisition of title set up by the appellant, so as to bind him by constructive notice of the respondent’s rights under the sale. So far as the endorsing of a memorandum of the filing upon the certificate is concerned, we do not find that such memorandum was required by statute, though it would certainly be desirable for obvious reasons. And it may be doubted whether even if such memorandum was required, the omission of the Register to make it, would have prejudiced the respondent’s rights. Neither do we find that there was any provision of law requiring the Register to index the certificate. The language used by the referee, in his finding of facts, may not, perhaps, fix the time when the certificate was filed, with the utmost precision, yet we think a faff construction of it, in itself, taken in connection with the construction evidently put upon his own language by the referee, himself, in his conclusion of law relating to the same point, and show — 90 — ing in what sense he made nse of that language, places beyond question the fact that the referee finds that the certificate was filed prior to the time when Michael Cummings, junior, made the conveyance through which the appellant deduces his title. The appellant interposed a motion below to set aside the report of the referee on the ground, among others, that the evidence was insufficient to justify the finding as respects the filing of the Sheriff’s certificate, and it is from an adverse decision of this motion that he appeals to this Court. If there was any evidence before the referee, reasonably tending to show the fact of filing, we should not be inclined to disturb the finding. See Russell v. Minn., outfit, 1 Minn. 162. In the first place, the referee had before him the testimony of Banker, who, while preparing a general abstract of titles, discovered the certificate on file in 1858, and noted the fact on his abstract books. There was also the testimony of Patridge as to finding the certificate on file, with other papers of a similar character, in 1862, and as to the fact of the delivery of a certificate to him by the Sheriff, which had been lost, but was proved to be like the duplicate on file. Again, there was to be considered the presumption that the Sheriff had performed his official duty by filing the duplicate within a reasonable time, and we are not prepared to say that, in the absence of anything to the contrary, this presumption might not be held conclusive. See Jackson v. Shaffer, 11 Johns. 516; Hartwell v. Root, 19 Johns. 347. On the other hand, no evidence was offered tending to show that the duplicate was not filed immediately after the sale. Although this state of facts may not produce absolute certainty of conviction, or remove every reason for doubt, it clearly had a tendency to establish the fact of filing as found by the referee, and we do not feel warranted to set aside his report for insufficiency of evidence to justify his finding in this regard. The appellant, in addition to his title, under the conveyance from Michael Cummings, jr., sets up a tax title; and it appears that the — 91 — advertisement of sale, upon which, the tax title is based, described the premises in question, together with other land, as two-thirds of block four, in Bass’ out lots. This is not a description of any particular parcel of land. It is a description which might or might not include the north third of block four, the land in litigation in this action. It has repeatedly been determined that such a description is bad for uncertainty. See cases cited in Blackwell on Tax Titles, 1st Ed. 266, 211, inclusive. The sale was, therefore, void, and passed no title to the appellant. In addition to this, it appears that the whole of block four was assessed at $1,800 for the land, and $800 for improvements ; that almost all of the improvements were situated upon the middle third of the block; that one Thompson, claiming an interest in the middle third, paid nine-twenty-sixths of the tax assessed on the whole block, took a receipt in full for the payment of taxes on that third, and the tax thereon was cancelled by the Treasurer. Under this state of facts, two thirds of the block were returned delinquent for an undue proportion of the original tax. This was clearly a violation of that provision of our Constitution which requires taxes to be equal, and to be levied upon a cash valuation, and furnishes an additional ground for attacking the tax sale. The order denying the motion to set aside the report of the referee, and for a new trial, is affirmed, and the action remanded.