James v. Wilder

• Decision Date: 05 October 1878
• Citation: 25 Minn. 305
• Parties: MARTIN S. JAMES <I>vs.</I> AMHERST H. WILDER and others.
• Court: Minnesota Supreme Court

Page 305

25 Minn. 305

MARTIN S. JAMES vs. AMHERST H. WILDER and others.

Supreme Court of Minnesota.

October 5, 1878.

Appeal by the defendants Amherst H. Wilder and Channing Seabury, copartners as A. H. Wilder & Co., and by Andrew J. Preston, from a judgment of the district court for Ramsey county, entered upon the report of a referee, in an action brought by plaintiff against them and W. D. Cornish, as administrator of John P. Kilroy, deceased, and others, to determine the adverse claims of the defendants to the north one-third of lots 1, 2 and 3, in block 10, in the city of St. Paul. The facts are stated in the opinion.

E. C. Palmer, for appellant Preston, and W. P. Warner, for appellants Wilder and Seabury.

U. L. Lamprey, for respondent.

BERRY, J.

The plaintiff, alleging that he is the owner in fee simple of a parcel of land of which he is in possession, brings this action, to determine adverse claims made to the same by defendants. When the plaintiff had closed his case, the appealing defendants, Preston and Wilder & Co., moved for a dismissal of the action, for misjoinder of a cause of action to determine the adverse claim made by one, with a cause of action to determine the adverse claim made by the other. The objection, (if it be one,) not having been taken by demurrer or answer, was waived. Gen. St. c. 66, §§ 74, 77, 78.

The adverse claims set up by the appealing defendants in this action were based upon judgment liens against the parcel of land of which the plaintiff alleges himself to be owner and in possession. It appeared from the findings of the referee who tried the case, that the judgment of Wilder & Co. was entered and docketed April 18, 1867, and that of Preston on July 5, 1867. When the appeals taken by Wilder & Co. and Preston came on to be heard in this court, at October term, 1877, the plaintiff moved to dismiss the same, upon the ground that the judgments and liens had become extinguished by the lapse of ten years from the time of the entry and docketing of the judgments, no execution having been issued or levied thereon, so that the appellants had ceased to have any lien (if any they ever had) upon the parcel of land in controversy. Whether the position thus taken in support of the motion to dismiss is sound or not, we do not deem it necessary to determine at this time, and upon a motion for a dismissal. The judgment, among other things, adjudges costs to the plaintiff in the sum of $135.67. Even if the defendants have lost their interest in the land in controversy in the manner mentioned, they are still entitled to have the judgment appealed from examined for the purpose of having it determined whether the judgment upon the merits was correct, so as to entitle the plaintiffs to the costs awarded. The case does not stand exactly as it would if the defendants had lost their interest in the subject of litigation by a voluntary settlement, by the parties, of the matter in controversy. In that case, this court might refuse to proceed with the hearing of the appeal, for the reason that if, on settling the matter in litigation, the parties have omitted to settle the costs, it is their own fault. But no such reason is applicable to this case. The motion to dismiss is therefore denied.

It appears that by the judgment in this case, defendants Wilder & Co. and Preston were enjoined from issuing executions upon their judgments. As to what effect the injunctions have upon the liens of these judgments, or the right to issue executions upon them, we are not to be understood as making any settled decision, though our opinion was intimated upon the hearing.

We come now to the merits of the case. So far as deemed material to the purposes of this opinion, the facts found by the referee are as hereinafter stated.

On September 1, 1856, a judgment was entered and docketed in favor of the board of commissioners of Ramsey county against Wm. H. Randall. On February 19, 1858, the premises in controversy were sold, upon execution issued upon said judgment, to Olivier. On December 8, 1871, a sheriff's deed upon such sale was made to the heirs of Olivier, who conveyed to the plaintiff.

On September 17, 1850, a judgment was entered and docketed in favor of H. N. Hart against W. H. Randall. On September 15, 1860, the premises in controversy were sold, upon execution issued upon said judgment, to Hart.

On November 15, 1860, a judgment was entered and docketed against Olivier in favor of the board of county commissioners of Ramsey county. On January 25, 1861, the premises in controversy were sold, upon execution issued upon said judgment, to said board of commissioners.

On August 21, 1861, Hart, in consideration of the payment to him by the county of Ramsey of the sum for which the premises were struck off to him, with interest, executed a sealed instrument, whereby he assumed to sell, transfer and convey to said county all his right, title, interest and estate in and to the premises in controversy, and to assign and transfer to said county the sheriff's certificate of sale issued to him upon the sale to him as aforesaid, and all the rights, benefits and privileges derivable therefrom. On December 14, 1861, the sheriff executed to Ramsey county a deed, under the sale to Hart. On January 31, 1862, the sheriff executed to the board of commissioners of Ramsey county a deed, under the sale made to said board on January 25, 1861.

On January 23, 1860, Olivier and his wife executed a power of attorney to Giberton, authorizing him to sell any real estate belonging to them in this state, and to give deeds therefor. On September 6, 1861, Giberton, assuming to act as attorney under such power, executed a quitclaim deed to Dousman of all the right, title and interest of Olivier and his wife, in or to the premises in controversy; but there was no consideration for such deed. On July 22, 1862, Dousman and wife executed to Ramsey county their quitclaim deed of said premises, purporting to convey to said county all their right, title and interest in or to the same.

On November 11, 1865, the board of commissioners of Ramsey county executed a warranty deed of the premises to Kilroy. On July 30, 1870, Hart quitclaimed the premises to Pritchard, and shortly after Pritchard quitclaimed the same to Kilroy. On April 18, 1867, defendants Wilder & Co. recovered and docketed a judgment against Kilroy. On July 5, 1867, a judgment owned by defendant Preston was recovered and docketed against Kilroy. On June 14, 1872, Kilroy conveyed the south half of the premises in controversy to Lyon. On June 20, 1873, Lyon and his wife conveyed said south half to the plaintiff.

In Williams v. Lash, 8 Minn. 441 (496,) it was held that under the statute as it read prior to 1860, it was not competent for a county to purchase and hold real estate, except under the statutory provision found in Pub. St. c. 1, § 251, authorizing a county "to purchase and hold, for the public use of the county, lands lying within its own limits;" and that any purchase except for such public use was...