Ferguson v. Kumler

• Decision Date: 12 July 1878
• Citation: 25 Minn. 183
• Parties: JOSEPH FERGUSON <I>vs.</I> JOSEPH KUMLER.
• Court: Minnesota Supreme Court

25 Minn. 183

JOSEPH FERGUSONvs.

JOSEPH KUMLER.

Supreme Court of Minnesota.

July 12, 1878.

Appeal by defendant from an order of the district court for McLeod county, Macdonald, J., presiding, refusing a new trial, after verdict for plaintiff. The land in controversy was originally pre-empted by defendant. The plaintiff claimed title as purchaser at an execution sale under a judgment in his favor and against the defendant, rendered and docketed in Carver county, and a transcript filed in McLeod county, the time for redemption from the sale having expired. The defendant pleaded and introduced evidence tending to prove that at the time of the recovery of the judgment, and down to the time of the levy and sale, he occupied the land as his homestead. In rebuttal the plaintiff offered evidence that when the sheriff made the levy, the defendant, in answer to an inquiry by the sheriff, said that he did not claim any homestead, that he did not own the land, that it was his wife's property, and gave no statement of any kind as to the quantity of land that he claimed as a homestead. The exceptions taken at the trial are stated in the opinion.

L. M. Brown and H. J. Peck, for appellant.

Bigelow, Flandrau & Clark, for respondent.

BERRY, J.

Under the provisions of Gen. St. c. 84, § 11, this action is brought, to recover possession of certain lands purchased by plaintiff at an execution sale, no redemption having been made, and the time for redemption having expired. The action was commenced before a justice of the peace, by whom (a question of title having arisen) it was certified to the district court, under Gen. St. c. 65, § 35. A trial in the district court resulted in a judgment for defendant. Before the expiration of six months, the plaintiff paid costs and damages, and demanded another trial, under Gen. St. c. 75, § 5, as amended by Laws 1867, c. 72, § 2. (Gen. St. 1878, c. 75, § 11.) The section reads as follows, viz.: "Any person against whom a judgment is recovered in an action for the recovery of real property, may, within six months after written notice of such judgment, upon payment of all costs and damages recovered thereby, demand another trial, by notice in writing to the adverse party or his attorney in the action; and thereupon the action shall be retried, and may be brought to trial by either party." Is this an action for the recovery of real property, within the meaning of this section? From a general view of the provisions of chapter 75, relating to such actions, it is quite apparent that the phrase, "action for the recovery of real property," as there used, was intended to refer to an action in the nature of the common-law ejectment. The action of ejectment, although in form an action for the recovery of possession of real property, and hence spoken of as a possessory remedy, came to be the most usual action for the trial of title to real property. Tyler on Ejectment, 33.

The statute of forcible entries and unlawful detainers, (Gen. St. c. 84,) under which the present action was brought, was not designed to provide a mode of trying questions of title to real estate. It was designed to afford a summary remedy for the recovery of possession, where there was no real controversy as to title. This is apparent from the general nature of its provisions, and notably from the fact that the proceedings under it were to be instituted before a justice of the peace — a magistrate having no jurisdiction where title to real estate is involved. Nevertheless, under section 11, a practice has grown up of making use of these proceedings in cases in which it may turn out that the title to real estate is involved, and, if it does so turn out, then the case is certified to the district court, (as this was,) under Gen. St. c. 65, § 35. This practice has become so well established — see Goenen v. Schroeder, 8 Minn. 344 (387;) Merriam v. Baker, 9 Minn. 28 (40) — and is so convenient and useful, that it boots not now to inquire whether it was technically correct or not. The result is that where proceedings are instituted under the forcible entry and unlawful detainer act, for the recovery of possession of real property, they may become an action for the trial of title to such property, and therefore, in effect, and for all practical intents and purposes, an action for the recovery of real property, in the nature of the common-law ejectment. When the proceedings do become such action, there is no good reason why they should not fall, as in our opinion they do, within the provisions of Gen. St. c. 75, § 5, as amended, which allow any person, against whom a judgment is recovered in an action for the recovery of real property, a second trial, upon compliance with prescribed conditions. From this conclusion it follows that the second trial in the case at bar was properly permitted.

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