O'Farrell v. Heard

Berry, J. Wehman became owner of the land to which this action relates in January, 1865. On May 6, 1865, in an action commenced against him by certain creditors, application ivas made to a court commissioner for a Avarrant of attachment. The court commissioner issued a pretended Avarrant of attachment, the same being a document signed by him as court commissioner, but not signed by the clerk, nor sealed with the seal of the court, or otherwise. Under the authority of this document the sheriff assumed to attach the land in question. Por the reasons assigned in Wheaton v. Thompson, 20 Minn. 196, the document referred to Avas, as a Avarrant of attachment, simply void, and the levy made under it incurably void also. There is nothing in the distinction between the warrant provided for under the law in force in L865 and the writ provided for under the law in force in November, 1866, Avlien the protended Avrit referred to in Wheaton v. Thompson was issued ; for, if there be any doubt whether the warrant be a Avrit, there can certainly be none that it is a process, and, therefore, required to be executed in the same way and Avith the same formalities as a Avrit, under Pub. St. ch. 57, §§ 12, 13. On May 22, 1865, Wehman conveyed the land to Molinett, of whose title the plaintiff has become possessed. Subsequently judgment Avas recovered against Wehman in the action in which the pretended Avarrant of attachment Avas issued, and the land sold upon execution to defendant, Hoavcll. Defendant’s claim is that the attachment avrs valid, that Molinett took title subject to the lien created thereby, [193] and that by the execution sale his title was divested. In other words, as against Molinett, the validity of the sale is based solely upon the validity of the attachment. As we have already determined that the attachment was absolutely void, it follows that the sale in no wise affected Molinett’stitle. It is found that sometime during the pendency of the action against him, but whether before or after the conveyance to Molinett does not appear, Wehman moved to vacate the attachment, and that, after the conveyance to Molinett, this motion was denied. It is claimed that this is'an adjudication upon the validity of the attachment, and that, no appeal having been taken therefrom, it is a final adjudication. Wliatever may have been its effect as to Wehman, or whatever would have been its effect upon Molinett, if it appeared that the motion was pending at the time when he received his deed, we are unable to conceive how this denial could affect him as the case stands. If we are correct in our opinion that at the time when Molinett acquired title the attachment was absolutely void, it follows that Molinett acquired a title which was wholly unaffected by it; or, as it may be otherwise expressed, a title as good as if the pretended warrant had never had an existence. If this is so, it is impossible to see how his title could be divested by the refusal to vacate the void attachment, upon a motion to vacate which does not appear to have been pending when he received his conveyance. Order affirmed.