Todd v. Johnson
| Decision Date | 30 December 1893 |
| Docket Number | 8500 |
| Citation | 57 N.W. 320,56 Minn. 60 |
| Parties | William P. Todd v. Albert Johnson et al |
| Court | Minnesota Supreme Court |
Argued by appellant, submitted on brief by respondent December 14 1893.
Appeal by Andrew J. Finnegan, one of the defendants, from a judgment of the District Court of Meeker County, Gorham Powers, J entered July 29, 1893, quieting and confirming the title of plaintiff, William P. Todd, to eighty acres of land in that county.
Ole Eidem owned the land and on April 15, 1876, mortgaged it to George F. Snow with power of sale in case of default in payment of the debt secured. He made default, and the land was sold by the sheriff under the power February 1, 1879 pursuant to notice, and was bid in by Snow. The mortgagor failed to redeem, but his judgment creditors filed the notices and took the proceedings stated in the opinion. The plaintiff claims under these redemptions. The defendant Finnegan claims under Snow, contending that no valid redemption was ever made.
The issues were first tried and judgment entered for plaintiff in Kandiyohi County October 20, 1891. On appeal that judgment was reversed and a new trial ordered. Todd v Johnson, 50 Minn. 310. A second trial was had November 28, 1892 at Litchfield. The Court made findings of fact and again ordered judgment for plaintiff. It was entered and defendant Finnegan appeals.
Judgment affirmed.
Savage & Purdy, for appellant.
Plaintiff sold and conveyed this land June 9, 1891, to Peter E. Hanson. This was after this action was commenced. Defendants offered this deed in evidence. Plaintiff objected, but it was received and he excepted. Not having appealed plaintiff cannot raise the objection that the deed should have been excluded. Maloney v. Finnegan, 40 Minn. 281; Pinney v. Russell, 52 Minn. 443. Mackay's judgment was not a lien upon this land. The indebtedness for which it was recovered was incurred in September, 1874, while the patent was issued January 15, 1875, under the Act of Congress which declares that no lands acquired under the homestead law shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent. U. S. Rev. Stat. § 2296; Seymour v. Sanders, 3 Dill. 437; Russell v. Lowth, 21 Minn. 167; Miller v. Little, 47 Cal. 348.
But further, Mackay did not take any steps to redeem from this foreclosure sale. He did not attempt, authorize or ratify a redemption. His attorney redeemed without his knowledge or consent. The attorney himself says that his instructions were simply, to collect the money due on the Eidem note. This could not be twisted into an authority to redeem real estate from a foreclosure sale more than four years after judgment recovered. Beardsley v. Root, 11 Johns. 464; Masterson v. Le Claire, 4 Minn. 163.
Snow did not in fact waive the insufficiency of the notice of intention. A man does not waive any right or any defect by his conduct where such right or such defect is at the time unknown to him. Pence v. Langdon, 99 U.S. 578; Hoxie v. Home Ins. Co., 32 Conn. 21; Shaw v. Spencer, 100 Mass. 382; Holdsworth v. Tucker, 143 Mass. 369; Darnley v. London C. & D. Ry., L. R. 2 H. L. 43.
Snow's title was perfectly good unless divested by redemption. The burden rests upon the plaintiff to show redemption by P. P. Mast & Co. P. P. Mast & Co. claim through Mackay, he, having acquired no rights, could not transfer any by waiver. The judgments of P. P. Mast & Co. against Eidem are void on their face. They were recovered before a Justice of the Peace. The docket entry is: "November 18, 1878, summons returned and filed, being served on defendant by leaving a copy with his wife." The record fails to show that the service was made by an officer or by a person deputized for that purpose. McKee v. Angel, 90 N.C. 60; Barber v. Morris, 37 Minn. 194; Godfrey v. Valentine, 39 Minn. 336.
The rule as to Justice's judgments is, that the record must affirmatively show jurisdiction. Barnes v. Holton, 14 Minn. 357; Clague v. Hodgson, 16 Minn. 329; Mudge v. Yaples, 58 Mich. 307; O'Connell v. Hotchkiss, 44 Conn. 51; Benson v. Dyer, 69 Ga. 190; Rowley v. Howard, 23 Cal. 402.
The transcripts of these judgments filed in the District Court are insufficient to create a lien on real estate. They neither show correctly the Justice before whom they were recovered, the date, nor the true amount. Ander son v. Miller, 5 Blackf. 417; Facey v. Fuller, 13 Mich. 527.
Frank Healy and Uri L. Lamprey, for respondent.
Defendant claims that plaintiff could not recover by reason of his deed to Peter E. Hanson. There is nothing in this point. The only facts necessary to constitute a cause of action are the possession by plaintiff in person or by tenant and an adverse claim in defendant. All that plaintiff needs to prove to make out his case is possession. Steele v. Fish, 2 Minn. 153; Meighen v. Strong, 6 Minn. 177; Wilder v. City of St. Paul, 12 Minn. 192; Barber v. Evans, 27 Minn. 92; Green v. Dwyer, 33 Minn. 403; Child v. Morgan, 51 Minn. 116; Knight v. Alexander, 38 Minn. 384.
But the record shows that the plaintiff objected to the defendant's introducing the deed to Hanson, because the deed was not given until after the issues in this action were formed and was inadmissible under the pleadings. Harrington v. St. Paul & S. C. R. Co., 17 Minn. 215; Finley v. Quirk, 9 Minn. 194; Cochrane v. Halsey, 25 Minn. 52.
We submit that Mr. Mackay authorized redemption, that he attempted to and did make redemption. Berthold v. Fox, 21 Minn. 51; Sheldon v. Risedorph, 23 Minn. 518; Schorigge v. Gordon, 29 Minn. 367.
Mackay asserted his right to redeem; Snow conceded it by accepting the money; P. P. Mast & Co. conceded it and redeemed from Mackay. They were the only parties interested. Who then had the power to say that Mackay had no right to redeem? And what right has Snow now after he has made such concession and received his consideration for it, to repudiate it?
But assume that the defect avoided Mackay's redemption, then the case would be that he failed to redeem, and that would not affect P. P. Mast & Co.'s right to redeem within the time allowed on the lien of their judgment, to wit: five days after the five days allowed Mackay.
In this action to determine an adverse claim of defendant, the plaintiff alleges possession and title. The defendant, in addition to a general denial, sets up title in himself, and asks an affirmative judgment. The answer thereby presents an independent claim for adjudication. This is a waiver of strict proof of possession, and is a consent to try the controversy over the title on its merits. This disposes of the first assignment of error. Hooper v. Henry, 31 Minn. 264, (17 N.W. 476.)
The issues herein were framed in 1888, but upon the trial the defendant, over the objections of the plaintiff, offered in evidence a quitclaim deed of the premises from the plaintiff to one Hanson, dated in 1891. To entitle this evidence to be received, a supplemental answer should have been filed. The deed not having been admitted in evidence by consent, it was not within the issues, and hence was not the proper subject of a finding of the jury. Harrington v. St. Paul & Sioux City R. Co., 17 Minn. 215, (Gil. 188.)
The defendant claims title under the grantee of one Snow, who purchased the land on the foreclosure of a mortgage held by him. Plaintiff claims under redemptions from the foreclosure sale made by judgment creditors of the mortgagor, one Eidem. These redemptions were considered in our decision upon the former appeal herein, 50 Minn. 310, (52 N.W. 864,) to which we refer. The first of these redemptions was made in behalf of one Mackay, the senior judgment creditor, within five days after the expiration of the year allowed the mortgagor to redeem. The redemption was made in his behalf by his agent, by paying the proper amount to the sheriff; and a certificate of redemption, sufficient in form, was issued to him on the day of the redemption, February 5, 1880, and duly recorded on the 9th day of February, 1880. And within five days, viz. on February 7, 1880, P. P. Mast & Co., a corporation, as junior judgment creditor, paid to the sheriff, as upon a redemption of the same premises, the amount paid by Mackay, together with the amount of his judgment, and thereupon received the proper sheriff's certificate of redemption.
Under the decision referred to, these certificates must be deemed sufficient in form; and the defects in Mackay's notice of intention to redeem, and the omission to furnish the sheriff the proof required by 1878 G. S. ch. 81, § 14, were also there held not to be fatal to the redemption, as between the redemptioner and Snow, the person redeemed from, who is the common source of title of these parties. A new trial was ordered because the plaintiff had failed to prove the liens upon which the redemptions were attempted to be made. On the second trial, plaintiff produced a certified copy of the judgment record in favor of Mackay, in Kandiyohi county, and of the proper transcript and docket entries in Meeker county, where the land is situated, and where the judgment was duly docketed October 4, 1878.
Several objections are again raised by defendant to the validity of the redemptions: (1) As respects that in behalf of Mackay, it is insisted that it was made by the attorney who recovered the judgment, without adequate authority. (2) It is also urged that neither he nor Snow, the mortgagee, knew of the defects or...
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