Northwest Holding Company v. Evanson

• Decision Date: 21 June 1963
• Docket Number: No. 38771,38771
• Citation: 122 N.W.2d 596,265 Minn. 562
• Parties: NORTHWEST HOLDING COMPANY, Respondent, v. Gordon EVANSON et al., Appellants.
• Court: Minnesota Supreme Court

Page 596

122 N.W.2d 596

265 Minn. 562

NORTHWEST HOLDING COMPANY, Respondent, v. Gordon EVANSON et al., Appellants.

No. 38771.

Supreme Court of Minnesota.

June 21, 1963.

Syllabus by the Court

Appeals to the supreme court from the municipal court of the city of Minneapolis in unlawful detainer proceedings lie only from the judgment of restitution.

Neither an order for judgment nor an order denying a motion to set aside a writ of restitution is appealable.

Melba P. Evanson and others, pro se.

Arnold I. Feinberg, Minenko, Feinberg, Mirviss, Meyers & Schumacher, Maurice L. Grossman, Frank Fudali, Minneapolis, for respondent.

OTIS, Justice.

This is an appeal by defendants from three others of the municipal court of the city of Minneapolis. The first, dated September 26, 1961, finds the defendants guilty of unlawfully detaining the premises here in question and directs judgment of restitution in favor of plaintiff. The other two orders, dated October 28, 1961, and November 20, 1961, deny motions by defendants to set aside the writ of restitution. No appeal has been taken from the judgment of restitution entered November 8, 1961. Defendants appear pro se, and plaintiff has filed no brief. While our decision to grant plaintiff's motion to dismiss this appeal renders unnecessary extended comment on the issues, we are constrained to discuss them fully in the hope that by so doing we may bring to a conclusion this protracted and unhappy litigation.

Inevitably, the record is sketchy, and there are gaps which make an accurate recitation of the chronology difficult. (See Appendix.) However, it appears that in the year 1919 Dan Rosso acquired title to a building containing two retail stores and two residential apartments located at 2324 and 2326 Central Avenue Northeast in the city of Minneapolis. The property was conveyed in 1951 to Paul Rosso, a son, and out of his subsequent activities all of this litigation arose.

On August 30, 1957, William Holmes sold Paul Rosso a parcel of real estate. A few days later Rosso repudiated the contract, alleging misrepresentation as to the type of construction on the premises. This controversy resulted in Holmes' bringing an action for specific performance or for damages. An advisory verdict was rendered on February 11, 1959, and findings in favor of Holmes were thereafter filed by the court. A judgment against Rosso for $3,049.75 was thereupon entered.

It appears that on September 13, 1957, Paul Rosso became involved in an altercation with James Ledwein which gave rise to an action for assault commenced 4 or 5 days later in which Ledwein alleged damages in the sum of $50,000. This action resulted in a judgment against Rosso in favor of Ledwein in the sum of $2,686.20.

It may be fairly inferred that at a time when these two claims against Rosso were pending, he conveyed the Central Avenue property back to Dan Rosso and Pauline Rosso, his parents, by a deed filed on September 30, 1957.

For almost a year and a half the Ledwein and Holmes actions were pending. In both of them Rosso had counsel. Apparently he has attributed all of his troubles to the quality of his legal representation, because he has undertaken to handle all subsequent litigation without a lawyer. The record is replete with the admonitions of judges and other public officials urging the Rosso family to retain counsel. As early as May 4, 1959, the attorney general's office advised him by letter, 'The best possible course of action for you to follow is to obtain the services of an attorney and to abide by his judgment as to what course of action will most fully protect your interests.' Similar advice repeated to appellants has fallen on deaf ears. Not until the moment the sheriff was literally breaking down their doors did appellants again seek professional help.

Pursuant to his judgment, Holmes secured a writ of execution on June 11, 1959, under which he bought the property here in question on August 17, 1959, for the sum of $2,500. Meanwhile, on July 9, 1959, Ledwein had begun a second action against Paul Rosso to set aside the conveyance Rosso had made to his parents 2 years earlier. This lawsuit promptly precipitated a conveyance to Melba P. Evanson, a daughter, on July 30, 1959.

On August 3, 1960, Ledwein secured a judgment declaring Rosso to be the owner of the property and declaring his deed fraudulent and null and void as to creditors. Pursuant to the levy of execution to enforce his judgment, Holmes received a sheriff's certificate of sale on October 9, 1960, there having been no redemption within the year allowed by statute. ¹

Holmes commenced an action to register title to the Central Avenue property on December 29, 1960. In those proceedings the county surveyor advised the examiner of titles that Melba P. Evanson claimed to be the fee owner and that she and Paul Rosso and Paulina Rosso (also spelled 'Pauline') and Gordon Evanson were in possession. In his report to the court the examiner of titles recommended that all of them be made parties, and, in addition, outlined in detail the procedural history of the judgment, levy, and execution sale on which Holmes based his title. The examiner of titles noted that the conveyance to Melba P. Evanson occurred at a time when a notice of lis pendens had been recorded by Ledwein in his action to set aside Paul Rosso's conveyance to Dan Rosso and Pauline Rosso. The examiner recommended all of these persons be made parties defendant, 'so that there may be evidence at the hearing and a finding in the Decree as to whether they (Melba Evanson and Paul Rosso) do or do not have any interest in the premises herein.' Accordingly, Paul Rosso, Paulina Rosso, Melba Evanson, and Gordon Evanson were all personally served in the registration proceedings. It is their claim that they appeared by answers which were mailed to the clerk of court on April 22, 1961, and April 25, 1961. No copies of their answers are in the record. In his report of August 8, 1961, the referee recited that there had been no appearance by any of the defendants or none which raised any issue not admitted by the proposed decree. The affidavit of default executed by counsel for the applicant does not show any answer or appearance by appellants, nor does the affidavit of default filed by the clerk of district court. Accordingly, the court entered a decree on August 8, 1961, registering title to the premises in William Holmes, showing the Rossos and Evansons to be occupants at sufferance, and reciting that no answers or appearances had been made except by persons not here involved. In addition, the decree recognized judgments in favor of Ledwein in the sum of $2,686.20, arising out of the assault, and $520 arising out of the action which he had brought to have the conveyance by Paul Rosso set aside. Attorneys' liens occasioned by these actions, in the sums of $1,350 and $520, were also preserved. No appeal or other action has been taken to challenge the registration decree.

On August 16, 1961, Holmes conveyed his interest in the property to plaintiff, Northwest Holding Company, which mortgaged it for $28,000 to Twin City Federal Savings and Loan Association on August 18, 1961. (There have been two subsequent conveyances.) The following month this action for unlawful detainer was commenced by plaintiff against defendants in the municipal court of Minneapolis, resulting in the orders and judgment to which we have referred. The parties were physically evicted on November 30, 1961. They have subsequently instituted unsuccessfully numerous unlawful detainer proceedings on their own behalf against tenants in possession.

Basically, the only issue raised by defendants is their claim that throughout all of these proceedings and since the year 1919 this property has been occupied by them as their homestead and is therefore exempt from execution. ² If the record is accurate, neither before nor after the Ledwein and Holmes judgments were entered against Rosso have defendants instituted judicial action or otherwise properly raised the issue of whether these premises constituted their homestead at the time of the execution sale, until this unlawful detainer hearing was conducted. ³ Meanwhile, the rights of third persons, apparently without notice, have intervened.

Under such circumstances, where there has been actual service on persons claiming an interest and they have failed to pursue their remedy with diligence, it would appear that their rights in the premises have been irrevocably lost by failing to assert them in the proceedings to register title. For the reasons we have stated, we deem it advisable to discuss the statutes and authorities governing the finality of a registration decree although the case is decided on other grounds.

1. While, as we have noted, defendants have never secured an adjudication of their homestead rights, it would appear that it was not necessary to assert them in the proceedings resulting in the execution sale. This state is particularly solicitous of the rights of homesteaders, and we have indicated that even after an execution sale an owner may have his day in court to protect his claim. Beigler v. Chamberlin, 145 Minn. 104, 106, 176 N.W. 49, 50. We have adopted a position intended to discourage waivers which 'fritter away the wholesome and beneficent protection and privilege' our homestead policy was designed to secure to the family. ⁴ It has been described as--

'* * * the wise and humane policy of securing to the citizen, against all the misfortunes and uncertainties of life, the benefits of a home not in the interest of himself, or, if a married man, of himself and family alone, but likewise in the interest of the state, whose welfare and prosperity so largely depend upon the growth and cultivation among its citizens of feelings of personal independence, together with love of country and kindred--sentiments that find their deepest root and best nourishment where the...