Mead v. Randall
| Decision Date | 12 May 1897 |
| Docket Number | 10,372--(39) |
| Citation | 71 N.W. 31,68 Minn. 233 |
| Parties | GEORGE W. MEAD v. CATHARINE RANDALL and Another |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Nicollet county, Webber, J., denying his motion for a new trial. Reversed.
Order reversed, and new trial granted.
A. R Pfau and A. M. Rutan, for appellant.
It is claimed on the part of the plaintiff that it is not sufficient that the defendant has shown that her judgment was docketed and entered prior to the recording of the deed of assignment, it having been shown that the property sought now to be subjected to the lien of this judgment was, before the entering and docketing of such judgment, duly assigned and conveyed; we claim that she must further prove, before she can acquire this lien, that when said judgment was entered she had no notice of the existence of said deed of assignment. Lamberton v. Merchants', 24 Minn 281; Paulson v. Clough, 40 Minn. 494. Where a party relies upon a subsequent conveyance to take precedence over a prior unrecorded one, it is necessary for such party to prove in the first instance that he had no notice of the prior conveyance. Roussain v. Patten, 46 Minn. 308; Wright v. Larson, 51 Minn. 323.
Lorin Cray, for respondents.
An assignment for the benefit of creditors is invalid as to real estate until recorded with the register of deeds. G. S. 1894 § 4228. This statute is probably intended as a mere registry act to protect bona fide purchasers. Paulson v Clough, supra. In a contest between an assignee claiming real estate, and a judgment creditor claiming a lien upon the same real estate, it would seem that the rights of the creditor attach and become fixed upon the docketing of his judgment. In re Church, 40 Minn. 39. And that rights which have become fixed can not be disturbed by an assignment thereafter made is held in Bean v. Schmidt, 43 Minn. 505. The burden of proving good faith is upon a party claiming adversely to an unrecorded instrument; but that good faith may be proven by circumstances, as, for instance, if the lien or incumbrance were acquired in the ordinary way; and this being so, the burden of proof shifts, and the party claiming under an unrecorded conveyance must affirmatively prove notice of his conveyance. Bank v. Ellis, 30 Minn. 270; Shotwell v. Harrison, 22 Mich. 410; McCarthy v. Grace, 23 Minn. 182; Wright v. Larson, 51 Minn. 321. One holding security for his claim may legally file and prove his claim without surrendering his security. He is not called upon to so surrender it before payment of his claim. Swedish v. Davis, 64 Minn. 250. If a judgment lien is in any case a security, such as is referred to in the insolvency statutes when speaking of secured claims, yet a creditor does not surrender his security until he accepts a dividend and files a release. Nicolay v. Mallery, 62 Minn. 119.
The admitted facts are as follows: The land in dispute is situated in Nicollet county, and on November 19, 1891, belonged to one Marsh, a resident of the city of Mankato, Blue Earth county. On that day, Marsh, in conformity with the insolvency law of 1881, executed to plaintiff a general assignment of his property for the benefit of creditors, which was filed the same day, at 2:10 p. m., in the office of the clerk of the district court for Blue Earth county, and a certified copy filed for record in the office of the register of deeds of the same county on November 21, at 10:15 a. m., and a similar copy filed for record in the office of the register of deeds of Nicollet county on November 21 at 5 p. m. On October 13, 1891, the defendant Randall brought suit in the district court of Blue Earth county against Marsh on a valid demand for money, the complaint being filed and the summons served personally on that day. Judgment was rendered in that action in favor of Randall and against Marsh on November 20th, and docketed in Blue Earth county at 2 p. m. the same day. A transcript of this judgment was filed and docketed in Nicollet county on November 21st, at 10 a. m. Randall was, and for 10 years then last past had been, a resident of the city of Mankato, the county seat of Blue Earth county.
On November 21, 1891, Randall caused execution on her judgment against Marsh to be issued, directed to the sheriff of Nicollet county, under which a levy was made on the land in question, but the execution was afterwards returned unsatisfied. In January, 1892, Randall filed with the plaintiff a transcript of her judgment as a claim against the estate of Marsh, and in the affidavit verifying it stated that the claim was not in any manner secured. Subsequently Randall caused a second execution on her judgment to be issued, directed to the sheriff of Nicollet county, under which defendant Block, as such sheriff, levied on the land, and was about to sell it to satisfy the judgment, when the plaintiff brought this action to enjoin the sale, and to have it adjudged that he, as assignee of Marsh, was the owner of the land, and that Randall had no lien thereon by virtue of her judgment. There was no evidence as to whether Randall, at the time her judgment was docketed in Nicollet county, had actual notice of the assignment from Marsh to plaintiff except so far as an inference one way or the other may be drawn from the foregoing facts.
The trial court found as a fact that Randall did not have...
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