Lydiard v. Chute

• Decision Date: 20 January 1891
• Citation: 45 Minn. 277,47 N.W. 967
• Parties: LYDIARD v CHUTE ET AL.
• Court: Minnesota Supreme Court

45 Minn. 277

47 N.W. 967

LYDIARDvCHUTE ET AL.

Supreme Court of Minnesota.

Jan. 20, 1891.

(Syllabus by the Court.)

1. Tidd v. Rines, 26 Minn. 201,2 N. W. Rep. 497, and other cases, followed as to the sufficiency of a deed, defectively acknowledged, to pass the title to real property, as between the parties.

2. Except in cases affecting the personal status of the plaintiff, and in cases in which that mode of service may be considered as having been assented to in advance, the substituted service of process by publication, authorized by the statute of this state in the year 1863, in actions brought against non-residents, was effectual only where, in connection with the process against the person for commencing the action, property in the state had been brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or when the judgment was sought as a means of reaching such property, or of affecting an interest therein; in other words, when the action was in the nature of a proceeding in rem.

ON REHEARING.

In an action involving the title to real property, a deed not made by the defendant, and not executed and acknowledged in the manner prescribed by the statutes of this state, is inadmissible in evidence without proof of its execution aliunde.

Appeal from district court, Hennepin county; SMITH, Judge.

Action by David A. Lydiard, plaintiff, to determine the adverse claims of defendants, Samuel H. Chute and others, to certain vacant and unoccupied lands in Hennepin county. Both parties claim title from one James Dumbrach, plaintiff through a deed from Dumbrach and wife, and defendants through a sale under an execution issued upon a judgment in favor of Samuel H. Chute against James Dumbrach, June 27, 1863. In that action there was no personal service of the summons upon defendant, who was a non-resident, and no attachment issued against the property involved in this action. On the trial the deed from Dumbrach to plaintiff was received in evidence over defendants' objection. The deed was properly executed; the objections were to the acknowledgment. Judgment for plaintiff. Defendants appeal.

Howell W. Young, for appellants.

W. H. Adams, (S. L. Pattee, of counsel,) for respondent.

COLLINS, J.

1. As between the parties thereto, Dumbrach, the grantor, and plaintiff, the grantee, the deed offered in evidence by the latter was sufficient to pass title to the real property therein described without regard to a defect, real or pretended, in the matter of its acknowledgment. Tidd v. Rines, 26 Minn. 201,2 N. W. Rep. 497;Dobbin v. Cordiner, 41 Minn. 165,42 N. W. Rep. 870, and cases cited. Therefore no error was committed when it was received in evidence, nor was the ruling erroneous whereby the trial court denied defendants' motion to dismiss when plaintiff rested his case.

2. The action in which Dumbrach was defendant was brought, and judgment therein entered and docketed against him, in the year 1863. He was a non-resident, upon whom personal service of the summons could not be made. It was served by publication only, and he made no appearance in response thereto. The section of our statutes relating to jurisdiction of our courts over natural persons, then in force, (section 36, c. 72, Pub. St. 1858,) did not contain the words “upon which the plaintiff has acquired a lien by attachment or garnishment,” now found in section 70, c. 66, Gen. St. 1878. Otherwise the wording of the section was the same, these words making their first appearance in the Revision of 1866, c. 66, § 55. No writ of attachment was issued in the action against Dumbrach, and hence the premises in dispute were not seized or levied upon, in any manner, prior to the entry of judgment. They were first proceeded against by virtue of the execution. In the year 1877, it was held by the highest tribunal of the land that, except in cases affecting the personal status of the plaintiff, and in cases in...