Fridley v. Munson

• Decision Date: 19 July 1923
• Docket Number: No. 4996.,4996.
• Citation: 46 S.D. 532,194 N.W. 840
• Parties: FRIDLEY et al. v. MUNSON et al.
• Court: South Dakota Supreme Court

46 S.D. 532

194 N.W. 840

FRIDLEY et al.

v.MUNSON et al.

No. 4996.

Supreme Court of South Dakota.

July 19, 1923.

Appeal from Circuit Court, Hamlin County; W. N. Skinner, Judge.

On motion for rehearing. Judgment reversed.

For former opinion see 46 S. D. 525, 191 N. W. 453.

Sherwood, J., dissenting.M. E. Culhane and B. H. Schaphorst, both of Brookings, and F. C. Austin, of Minneapolis, Minn., and M. J. Russell, of Watertown, for appellants.

Eugene P. Campbell, of Watertown, for respondent.

POLLEY, J.

[1][2] This appeal is before the court on rehearing. The former opinion of the court is reported in 46 S. D. 525, 191 N. W. 453. The complaint appears to have been framed under the provisions of section 2846, R. C. 1919, but the relief asked in plaintiff's complaint is that the court ascertain the extent of the Madden's interest in the real property involved, and that plaintiffs' judgment be declared to be a lien thereon. There are sufficient facts pleaded in the complaint to entitle plaintiffs to this relief, provided they are entitled to maintain this action, and the remaining portions of the complaint may be treated as mere surplusage. It is contended by appellants, and is so stated by the court in the former opinion, that:

“This action is brought to determine the liens or interests of all parties, and for the purpose of having the plaintiffs declared to have a judgment lien on said premises for the amount of said judgment.”

This contention is based on the provision of section 2569, R. C. 1919, which provides that the judgment:

“Shall be a lien on all the real property, except the homestead, in the county where the same is so docketed, of every person against whom any such judgment shall be rendered,” etc.

The language of this section of the law appears to be broad enough to include what are denominated equitable as well as legal estates, but it is contended by respondents that only legal estates are meant, and that, before appellants can maintain this action, they must levy upon the property and sell the same at execution sale. This is the view taken by the Supreme Court of North Dakota of a statute identical with our section 2569. In Cummings v. Duncan, 22 N. D. 534, 134 N. W. 712, Ann. Cas. 1914B, 976, that court says:

“If he (the judgment creditor) desired to reach such equitable interest, he should have levied thereon under an execution. Section 7082, R. C., above mentioned, has no application to mere equitable interests in real property; but it confers, and was intended to confer, a lien only on the legal title held by the judgment debtor.”

Our former opinion was based largely on this case; but on further consideration we are convinced that this is placing too restricted an interpretation on the statute. So long as the registry laws protect the interests of purchasers without notice of the trust estate, we can see no valid reason why section 2569 should not be...