Piper v. Johnston

• Decision Date: 01 January 1867
• Citation: 12 Minn. 27
• Parties: GEORGE W. PIPER v. JOHN JOHNSTON and others.
• Court: Minnesota Supreme Court

12 Minn. 27

GEORGE W. PIPERv.

JOHN JOHNSTON and others.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Nicollet county.

The case is fully stated in the opinion.

A. G. Chatfield, for appellant.

Austin & Warner, for respondent.

WILSON, C. J.

This action was commenced for the purpose of having declared void, as against the plaintiff, certain deeds of conveyance made by the defendant John Johnston, and the defendant Pratt, to the defendant Ellen S. Johnston. The plaintiff was a creditor of the defendant John Johnston, and alleges that said deeds were made with intent to hinder, delay, and defraud him in the collection of his said debt. Pratt did not answer; the other defendants answered, denying any fraudulent intention, or that said deeds were void. The issues were referred for trial to Franklin H. Waite, Esq., as sole referee, who found and reported as matters of fact, "that the defendant John Johnston was justly indebted to the plaintiff as early as July, 1857, on which indebtedness the plaintiff recovered a judgment for $2,941.29 in the district court of Nicollet county, which was rendered and docketed in said county on the seventeenth day of December, 1857. On the next day execution was issued upon said judgment to the sheriff of said county, and on the second day of February, thereafter, the same was returned by the sheriff, with an indorsement of $862.57 as made thereon, and no property found for the balance; that the said John Johnston, on the eighth of March, 1856, took a deed from the Hon. A. G. Chatfield, the judge of the county court of the said county of Nicollet, and who as such judge had personally entered and then held in trust, the town site of St. Peter, conveying to him (Johnston) the title to lots 3 and 4, of block 205, in the town of St. Peter; that the said John Johnston contracted said debt to the plaintiff while he was seized of said lots; that on the twenty-ninth day of October, A. D. 1857, the defendant John Johnston and Ellen S., his wife, conveyed said lots by deed to Benjamin F. Pratt, and on the same day he (Pratt) conveyed the same lots to Ellen S. Johnston; that said deeds were made while said Johnston was in failing circumstances, and the object of both conveyances was to convey the title to Ellen S. Johnston, to the exclusion of the creditors of said John Johnston, probably then estimating the premises to be worth more than $1,000, * * * and both deeds were without consideration. * * * I do not find that said lots were, in law or equity, the separate property of Ellen S. Johnston, as against the plaintiff, a creditor of John Johnston; but I do find that said lots, containing less than three-fourths of an acre, and the dwelling-house and appurtenances situated thereon, were occupied by the said John Johnston and his family as a homestead (he then and now being a householder) at the time of the creation of the debt to the plaintiff, and ever since have been and still are so occupied.

"As a conclusion of law, I find that the said judgment was recovered while the exemption laws of 1851 were in force, and the plaintiff, at the time of docketing thereof, acquired a complete lien upon said premises, subject to the said homestead exemption of said John Johnston and his family, and that the subsequent exemption laws of 1858 do not affect the judgment. * * * As a fourth conclusion of law, I find that the conveyance from John Johnston and wife to Pratt and also the conveyance from him to said Ellen S. Johnston, are fraudulent and void, as to said judgment."

The report of the referee was dated January 30, 1864. On the thirteenth of December, 1864, the clerk entered a judgment purporting to pursue and follow the report, adjudging that said deeds are void, as against the plaintiff, his heirs and assigns, and that the premises should be subject to the lien of the judgment, "and be sold and conveyed in satisfaction thereof, free and clear of any and all liens or claims of homestead or otherwise, save only the right of redemption from the sale thereof, and of possession as in all cases of sales of real estate on execution, and that the proceeds of such sale be, after deducting the fees and expenses of such sale, paid to the plaintiff or his attorney, and applied in satisfaction of the plaintiff's demand and judgment."

On the fourth of April, 1865, the defendant John Johnston, by his attorney, gave notice to plaintiff's attorney that a motion would be made on the seventeenth day of April, 1865, by and on behalf of John Johnston, "for an order to vacate, set aside, and declare void a pretended decree in said action, and also for a decree in said action of the purport, substance, and effect mentioned and specified" in a petition, a copy of which was served with said notice. The petition, after reciting the pendency of the action, the reference, and the report of the referee, states, among other things, "that since the making and filing of the report of the referee, the said Ellen S. Johnston has died; that in consequence of the death of his said wife, your petitioner is desirous that his homestead right in said premises may be determined, confirmed, and established by the decree of the court. And said petition further shows that, since the making and filing of the said report of said referee, the said plaintiff has caused to be made and signed by the clerk of this court, and filed in his office, a paper in the form of and purporting to be a decree of this court in this case; that the said plaintiff so caused the said paper, purporting to be a decree in the case, to be signed by the clerk, and filed in his office, without any application to the court therefor, and without any notice thereof to your petitioner, or his attorney, and without any order or direction of the court, or a judge thereof, or any other authority, or pretended authority, therefor than the said report of the said referee. The petitioner then prays that his homestead exemption right in and to the said premises, may be determined, confirmed, and established, and that the paper purporting to be a decree may be vacated, set aside, and declared void."

The motion for the order prayed for was made and heard at a general term of the district court of Scott county in April, 1865, and denied. From the order denying this motion, the defendant John Johnston appeals. The case was submitted to this court on written arguments. The plaintiff's counsel makes a preliminary motion that the appeal be dismissed, on the ground — First, that it does not appear from what order or judgment, if any, an appeal has been taken; and, second, that the order appearing in the paper book is not appealable. Appellant's counsel argues — First, that the judgment or decree entered without notice to the defendant, or order of the court, is void; second, that the judgment is unauthorized by the report of the referee; and, third, that the complaint is fatally defective.

We think it sufficiently appears from what order this appeal is taken. Our statute authorizes an appeal from an order involving the merits of the action, or any part thereof. This provision gives an appeal from every order which passes upon and determines the positive legal rights of either party. Chouteau v. Parker, 2 Minn. 118, (Gil. 95.) If the plaintiff had no legal right to take judgment without a special application to the court on notice to the defendant, the judgment is unauthorized, and the appellant has a strict legal right to have it vacated and set aside, and an order...