Donohue v. Ladd

• Decision Date: 24 November 1883
• Citation: 31 Minn. 244
• Parties: MATTHEW DONOHUE <I>vs.</I> JOSEPH W. LADD, impleaded, etc.
• Court: Minnesota Supreme Court

Page 244

31 Minn. 244

MATTHEW DONOHUE vs. JOSEPH W. LADD, impleaded, etc.

Supreme Court of Minnesota.

November 24, 1883.

Action in the district court for Renville county to determine the adverse claims of the defendants Ladd, Stearns and Sawyer, to an interest in and lien upon certain real estate in that county. The complaint is in the form usual in such actions. The separate answer of defendant Ladd denies any title or interest in plaintiff, alleges title in fee in defendant Stearns, an attachment of the land in a suit by himself against Stearns, before plaintiff acquired any interest in it, and a subsequent assignment for the benefit of creditors, "under the insolvent laws of said state," made by defendant Ladd

to one Lovejoy, who duly accepted, etc. The answer further avers that plaintiff claims title as purchaser at an execution sale on a judgment against Stearns, and alleges facts showing that the sale was void and the judgment was never a lien, because the land was a congressional homestead, and the debt on which the judgment was rendered was contracted prior to the issuing of the patent. A demurrer to this answer was sustained by Webber, J., and the defendant Ladd appealed.

C. H. Benton, for appellant.

Peck & Little, for respondent.

MITCHELL, J.

General Statutes 1866, c. 75, provided: "Section 1. An action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate, or interest. Sec. 2. If the defendant in such action disclaims in his answer any interest or estate in the property, the plaintiff cannot recover costs." By chapter 72, Laws 1867, section 1 was amended by adding the following: "Any person having or claiming title to vacant or unoccupied real estate may bring an action against any person claiming an estate or interest therein adverse to him, for the purpose of determining such adverse claim, and the rights of the parties respectively."

In Bidwell v. Webb, 10 Minn. 41, (59,) and in Brackett v. Gilmore, 15 Minn. 190, (245,) this court held that a lien was not "an estate or interest in land," but a mere charge upon it, and therefore not a proper subject of adjudication in this statutory action. Subsequently, and evidently in view of these decisions, the legislature (Laws 1874, c. 68) amended section 1 by inserting the word "lien" after the words "estate or interest," where they occur in the first or original clause of the section, but left unchanged the language of the second clause, added by the amendment of 1867. Gen. St. 1878, c. 75, § 2. The legislature have thus determined that liens might be adjudicated in these actions. They have indicated that in their view it was politic and proper that this should be done. If it can be done where the action is brought by a party in possession of land, there is no conceivable reason why it might not and ought not to be done where the action is brought by a person having or claiming title to vacant or unoccupied lands. The omission to insert the word "lien" in the second clause, as well as the first, was evidently one of those oversights or inaccuracies that frequently occur in amendments of statutes. But we think that, taking the whole statute together as it now stands, it sufficiently appears as the legislative intent that the validity of liens may be adjudicated in this form of action, whether the facts of a case bring it within the first or the second clause of the section referred to. This view finds support in the fact that section 2 of the statute, as to disclaimer by answer, was left unchanged. This section was clearly designed to apply to all actions brought under the first section, and therefore the words "estate or interest," as used in section 2, must be construed as including "liens."

2. The defendant, in his answer, denies plaintiff's title, and alleges title in his codefendant, Stearns, and then attempts to set up a lien which he had acquired and formerly held on the land by virtue of a writ of attachment, issued in an action brought by him as plaintiff against Stearns, for the recovery of money. The answer is, to say the least of it, an inartistic pleading. But we shall assume, for present purposes, that it sufficiently alleges the issuing and levy of this writ of attachment. The defendant then alleges that afterwards, (in March, 1883,) "under the insolvent laws of the state, he made an...