Knox v. Randall

Berry, J. On September 10, 1857, William H. Bandall, being indebted to certain bankers of St. Paul in the sum of $176,288.80, executed notes for the amounts owing to each respectively, and a mortgage upon real estate to secure the same. The notes and mortgage were made to run to Joseph M. Marshall, who at the same time transferred the notes to the creditors, so as to give to each respectively notes for the amounts owing to him. Marshall at the same time executed and recorded a declaration of trust to the effect that he held the mortgage in trust for such creditors in proportion to their respective demands. The mortgaged premises were encumbered by five judgment liens, paramount to the mortgage. Upon four of the judgments execution sales were had of portions of the mortgaged premises, For the purpose of protecting their security, the beneficiaries in the mortgage, in proportion to their respective interests and upon Marshall’s requisition, advanced money, with which Marshall, in March, 1858, purchased one of the five judgments, and under the same redeemed all the property — 493 — sold upon the former execution sales, except the portion which was sold at one of the sales to one Oliver. No one having redeemed from Marshall, he received sheriff’s deeds of the redeemed property. February 10, 1859, Marshall executed and recorded a second declaration of trust, reciting the facts aforesaid, relative to the judgments and redemptions, and declaring that he held the judgments and redemption titles, and all right, title and interest acquired, or which he might acquire, by virtue of such redemptions, for the benefit of the parties for whose benefit the first declaration of trust was executed, and their representatives and assigns, in accordance with their interests and equitable rights in the premises. The plaintiff is the owner and holder of three of the notes made to Marshall as above stated, subject to the interest therein of E. B. Galusha, as assignee of W. L, Banning & Co. All of the other notes made to Marshall are owned by defendants Allis and Davidson, except one, which is owned by defendant Warner. It is found by the court below that a certain alleged judgment in favor of Henry N. Hart against William H. Eandall was a valid judgment, and was a prior lien upon the property embraced in the mortgage to Marshall. This judgment came in question in Marshall v Hart, 4 Minn. 352, (450,) upon substantially the same objections made to it in the case at bar, and was held to be valid. As respects the question of the validity of the Hart judgment, the interests of all of the parties to the action at bar were represented in that action. The judgment in Marshall v. Hcurt is, therefore, as respects the question of the validity of the Hart judgment, binding and conclusive upon the parties to this action, for they were all either parties to the judgment m Hart against Marshall, or the privies of those who were parties. It follows that, upon the question of the validity of the Hart judgment in the present action, the judgment in Hart v. Marshall might have been pleaded in estoppel. It was not — 494 — so pleaded. Neither does it appear to have been introduced in evidence, as it might have been, although not pleaded in estoppel. Stephen on Evidence, art. 43. But, although the defendants have not availed themselves of it as they might have done, we think it ought to control, in this case, upon the principle of stare decisis. It is a decision of this court upholding the validity of the identical judgment involved in the action at bar. Whether it is necessary to treat it as a decision of the general question of the validity of judgments like that here involved or not, it is a decision in favor of the validity of this particular judgment in an action between parties who represent all the parties to this action. We shall, therefore, follow it without hesitation. In the same case (Marshall v. Hart) it was further held that the Hart judgment was a valid lien upon the property, covered by the mortgage to Marshall, lying in Ramsey county. For the reasons above given we follow this holding also. The judgment and its lien are therefore to be taken as valid. Several objections are taken to the execution issued upon the Hart judgment. The objection that there was no judgment upon which to base it is disposed of by what we have already said. It appears that Hollinshead, an attorney of the court in which the judgment was rendered, but who was not one of the plaintiff’s attorneys of record in the action before judgment, caused a notice, signed by himself as plaintiff’s attorney, to be served upon Randall, the judgment debtor, personally, to the effect that on March 28, 1859, a motion would be made before the proper judge for leave to issue execution upon the judgment, for the reason that the same was wholly due and unsatisfied, and that in support of the motion he would read the record in the action and his affidavit (a copy of which accompanied the notice) to the effect that he was the attorney at law and agent of plaintiff in the action; that the judgment had been duly rendered and docketed, and was wholly unsatisfied and due. Nothing, except as above, appears — 495 — .among the records oí the action showing the appointment or substitution of Hollinshead as attorney for plaintiff in the action. It is found that an order signed by the judge of the •court was duly filed on March 29, 1859, directing execution to be issued upon the judgment for the amount thereof, with interest. Upon this state of facts, the execution which was issued March 29, 1859, in usual form, must be held to have been duly and regularly issued. It was not necessary that -the application for its issue should be made by the attorneys in the action before judgment. Section 14, c. 82, Pub. St. (which is now section 13, c. 88, Gen. St.) requiring notice of change of attorney and substitution of a new attorney to be given, has relation only to changes and substitutions made before, and not to changes or substitutions made after judgment. A judgment creditor may employ a new attorney to enforce a judgment without any formal substitution or notice. Pub. St. c. 82, § 10; Gen. St. c. 88. § 9; Hinkley v. St. Anthony Falls Water Power Co. 9 Minn. 44, (55;) Berthold v. Fox, 21 Minn. 51. The order directing the issue of the execution was the adjudication of a court of general jurisdiction, and therefore presumptively correct. On making it the court passed upon and settled the question of its own jurisdiction to entertain the motion, including the question of the authority of Hollinshead to make it, to give notice to Randall, and to appear for Hart. It also passed upon the question whether the judgment was paid or not, and all other questions, the determination of which was necessary to the proper disposition of the motion for the issuance of an execution. Upon these grounds, and upon the facts above stated, the execution which was issued March 29, 1859, in usual form, must be' held to have been duly and regularly issued, and its indorsement by Hollinshead, as attorney for the plaintiff, must also be held -to have been correct. The execution was delivered to the sheriff of Ramsey •county on September 29, 1859, and by him served upon — 496 — Randall, and levied upon the Ramsey county real estate before mentioned, by leaving and posting copies of the execution as provided, in case of attachments of real property, in section 148, c. 60, Pub. St. Section 88, c. 61, Pub. St., declared that “all property liable to attachment is liable to execution; it must be levied on in the same way that similar property is attached; until a levy property is not affected by the execution.” In Tullis v. Brawley, 3 Minn. 191, (277,) this court was of opinion that the words “until a levy, property is not affected by the execution” applied only to personal property, and that no formal levy of an exeection upon real property was necessary. This opinion has been followed in several subsequent cases. Folsom v. Carli, 5 Minn. 264, (333;) Lockwood v. Bigelow, 11 Minn. 70, (113;) Bidwell v. Coleman, Id. 45, (78.) But, though a formal levy has thus been held not to be necessary to a valid levy upon real property, it has not, so far as we are hware, been held that such levy was not entirely proper as a step in the regular execution of a writ of execution under the law as it stood in the Public Statutes. We think it was regularly proper, and that, therefore, the sheriff to whom the execution in the ease at bar was delivered may justly be regarded as having commenced the execution of his writ by making a levy. The point that the sheriff had no authority to levy upon real property unless he could find no personal property, (which is not shown,) is disposed of by the presumption that the sheriff did his duty. Having commenced the execution of his. writ by a levy before the return day, the sheriff was authorized to go on and complete it by a sale after the return day. Barrett v. McKenzie, ante, 20. But it is contended that this rule cannot operate in this case, because the sale under the levy having been postponed to January 6, 1860, an action was, on the third day of January, 1860, commenced in the district court of Ramsey county» by Marshall, against Hart and the sheriff, in which, on January 6, 1860, an injunction was issued, and served upon the — 497 — sheriff, enjoining him and his deputies from further proceeding with the execution, and from making sale of any part of the premises levied upon until the further order of the court. No further proceedings were had upon the notice of sale which had been given. On July. 26, 1860, the injunction was dissolved. The effect of the injunction was to stop the proceedings upon the execution where they were. But the injunction did not operate to kill the execution which had been issued, nor to destroy or impair the levy‘which had been made under it. It was, therefore, competent for the sheriff, after its dissolution, even after the expiration of his term of office, to go on and complete the proceedings which he had commenced under the execution. This he did in this case by advertising a sale of the premises levied upon for September 8, 1860, on which day a sale was had, and the property levied upon (with the exception of three town lots and a half lot) struck off to Hart. For the reasons already adduced this sale must be held valid. On September 15, 1860, the sheriff executed and delivered to Hart a certificate of sale of the lots and parcels of land so struck off to him, which was duly recorded. Subsequently, and at various times prior to the expiration of the period of redemption, Hart sold and transferred his rights and interests under the certificate of sale to Bidwell, Burrall, Lash, and Turrell, persons holding some of the notes secured by the Marshall mortgage. These sales and transfers were to each of such persons severally of the rights and interests of Hart in specified lots and parcels out of the whole number struck off to him at the execution sale. There was no redemption from the execution sale, and the property was afterwards conveyed by sheriff’s deeds, in part to those who purchased from Hart, and in part to their assigns. The court below finds the following facts, viz.: That in taking their respective assignments from Hart of his interests in the certificate of sale, “Bidwell, Burrall, Lash and Turrell did not act under or in pursuance of any mutual-agreement, — 498 — but each one bought as he himself thought proper, in order to secure his own interest in the Randall notes and mortgages; ” that “the plaintiff knew of these purchases of Hart’s interest by Bidwell, Burrall,Lash and Turrell,” at or shortly after the time of said purchases, which were made at different times between March 1 and September 1, 1861; that at the time of the execution and delivery of the Randall notes and mortgage the firm of John J. Knox & Go. was composed of John J. Knox, Henry M. Knox and John Jay Knox; that thereafter, and about the month of May, 1860, John J. Knox withdrew from the firm; that thereafter and prior to the month of May, 1861, the three Randall notes delivered to John J. Knox & Co., and secured by the Randall mortgage, on account of which the plaintiff John Jay Knox brings this action, were duly assigned and transferred to John J. Knox, who thereby became and continued to be the sole owner thereof until some time in the summer of 1870, when, for a reasonable consideration he transferred the same to the plaintiff John Jay Knox, who has ever since been, and now is, the owner and holder thereof. The court further finds that neither the plaintiff nor John J. Knox ever made any claim to the purchasers of Hart’s interest under his certificate, or to any or either of them, that said purchases enured to the benefit of all the owners of said Randall notes, or of said plaintiff and John J. Knox, or either of them, or claimed any interest in the land embraced in said certificate, the interest of Hart in which was so purchased as aforesaid, or ever offered to contribute or refund their proportion, or any proportion of the moneys expended by said purchasers, or any of them, in purchasing such interest, or ever made any demand upon them, or either of them, to be allowed to come in and share the benefits of said purchases, upon making contribution or otherwise. : The present action appears to have been commenced in ;July, 1870. It is also found by the court below that Joseph •M. Marshall departed from this state in 1859 or I860, and has since remained out of it, and has, during all the time — 499 — since his departure, wholly failed and neglected to look after or attend to his duties as trustee as aforesaid, or to enforce the payment of the Randall notes by foreclosure or otherwise, or to protect the interests of his cestms que trust. ” As conclusions of law, the court finds that at the time of the purchase from Hart by Bidwell, Burrell, Lash and Turrell, of their respective interests in the certificate of sale, “there was such community of interest between them and the other owners of notes secured by said Randall mortgage, in the property embraced in said certificate, and in said mortgage, that such purchases must in equity be held to have enured at the election of the other owners of said notes within a reasonable time, upon proportionate contribution made, to the mutual benefit of all the owners of said notesand, further, that “the plaintiff and his assigns having allowed so long a time to elapse before attempting to make such election must, upon the facts herein set forth,” [the same being set forth in this opinion, so far as deemed material for the purposes thereof,] “and in the absence of any excuse or proof of fraud on the part of said purchaser, or of want of notice on the part of the plaintiff and his grantor, be held in equity to be guilty of laches, and to have abandoned any claim to a division of said property so purchased, or to subject it to foreclosure.” These conclusions of law are, in our opinion, entirely sound, especially (among other considerations) in view of the changes in price and value to which real property is subject in a new country like this state. 1 Sugden on Vendors, (14th Ed.) 253, and notes; Hawley v. Cramer, 4 Cow. 718; Campbell v. Walker, 5 Vesey, 678. This disposes of the appeal taken by the plaintiff. A separate appeal was taken by defendant Nobles. His answer, which is claimed to be somewhat in the nature of a cross-bill, alleged an arrangement by which certain parties, interested in the Randall mortgage, agreed to release all their right to certain parcels of the property covered by the mortgage to Nobles, in consideration that the Randall note owned — 500 — by Nobles “should be cancelled and eliminated from the operation of the mortgage. ” The answer alleged the execution of certain deeds under this arrangement, to the delivery of which it claimed that Nobles was entitled. It also claimed that Nobles was entitled to have the parcels of land above mentioned adjudged to be his in fee simple, and that he was further entitled to an account and payment over of certain rents of said parcels. The court found the facts relating to the alleged arrangement, and to what was done under it, otherwise than as alleged in the answer; and, further, as a conclusion of law, found that Nobles was not entitled to the specific property claimed in his answer, nor to a delivery of the deeds referred to in his answer. Such was the issue raised by his answer, and tried and determined by the court below. This determination we see no reason for disturbing. The findings of fact cannot be questioned, as none of the evidence bearing upon them is before us, while the findings of law appear to us to be entirely correct. The claim made in this court with reference to the purchases made of Hart by Lash, Turrell, Bidwell and Bur-rail, (being substantially that made by the plaintiff with regard to the same purchases,) and the manner in which they should be treated, was not within the issue made below by Nobles’ answer, and as respects Nobles was not submitted to, or tried or passed upon, by the court below. It follows that Nobles cannot be heard to make it here. We are not, however, to be understood as asserting that he or his successor in interest can now be heard to make it anywhere. The judgment is affirmed. G-ilñllan, O. J., having been of counsel, did not sit in this case.