Wakefield v. Brown

• Decision Date: 30 April 1888
• Parties: LUCY DAY WAKEFIELD and others <I>vs.</I> ZELORA E. BROWN and another.
• Court: Minnesota Supreme Court

38 Minn. 361

LUCY DAY WAKEFIELD and others vs. ZELORA E. BROWN and another.

Supreme Court of Minnesota.

April 30, 1888.

Ejectment for land in Hennepin county, brought in the district court for that county, and tried before Hicks, J., and a jury, who found for defendants as directed by the court. A new trial was denied and plaintiffs appealed. Both parties claim title under George E. H. Day, plaintiffs under a deed from him to their ancestor, Enos Day, bearing date October 26, 1857, and the defendants under the execution sale mentioned in the opinion.

Plaintiffs also claim title to an undivided half by a deed from John O. Brunius and wife bearing date April 1, 1887.

Smith & Reed, for appellants.

Ueland, Shores & Holt, for respondents.

MITCHELL, J.

The defendants claim title to the premises in dispute under a sale on execution, issued October 9, 1863, on a judgment rendered and docketed May 13, 1857, against one George E. H. Day. An execution was issued on this judgment May 15, 1857. On July 8, 1857, the judgment debtor obtained from the court an order staying all proceedings under the judgment, and the execution issued thereon, until the further order of the court, and directing the sheriff to return the execution immediately, which he did, stating that he returned it unsatisfied by order of the court. This stay continued in force until October 21, 1858, when the parties stipulated that the answer of the defendant (which it would seem he had been allowed to interpose) should be withdrawn, and the judgment theretofore entered remain and stand as the judgment of the court, and that, in consideration of the premises, execution should be stayed for one year from November 1, 1858. A second execution was issued May 26, 1862, and returned, "No property found," July 28, 1862. A third execution was issued October 9, 1863, which was the one on which the sale was made.

The statute applicable to the case was Rev. St. 1851, c. 71, § 80, (Pub. St. 1858, c. 61, § 80,) as amended by Laws 1862, c. 27, which is that "the party in whose favor judgment is given may, at any time within five years after the entry thereof, proceed to enforce the same as provided by statute; but when no execution shall have been issued and levied, or returned `No property found,' within five years from the time of the entry of judgment, the lien of the judgment shall be determined, and the property of the judgment debtor discharged therefrom." The contention of the plaintiffs is that the return of the first execution unsatisfied by order of the court was not, within the doctrine of Sherburne v. Rippe, 35 Minn. 540, (29 N. W. Rep. 322,) sufficient, under this statute, to preserve the lien of the judgment; and, the second execution having been issued more than five years after the entry of the judgment, consequently the lien of the judgment had terminated before the issuing of the execution on which the sale was made. On the other hand, defendants urge that, inasmuch as no formal levy upon real estate is necessary, as has been repeatedly held by this court, therefore the issuing and placing the first execution in the hands of the sheriff was a sufficient compliance with the statute to preserve the lien of the judgment; that this point was not covered by the assignments of errors, and hence not considered or passed upon by this court, in Sherburne v. Rippe.

Passing this point, we are clearly of opinion that it must be held that the lien of the judgment was in life at the time of the issuing of the third execution, in October, 1863, upon the ground that the time from July 8, 1857, to October 21, 1858, during which execution was stayed by the court at the instance of the judgment debtor, must be excluded from the computation of the five years allowed by the statute. If so, then, of course, the second execution was issued and returned in time to preserve the lien of the judgment. At common law, the right to sue out an execution in a personal action was limited to a year and a day from the entry of judgment. If the party had slipped his time, he was put to his action upon the judgment. This limitation of the common law was as inflexible and as positive as that of our statute; yet it was well established at common law that when the plaintiff had judgment with stay of execution, or execution was stayed by injunction, the plaintiff might sue out an execution within one year after the stay terminated or the injunction was dissolved. On the same principle, if the defendant brought a writ of error, and thereby hindered the plaintiff from taking his execution within a year, and the plaintiff in error was nonsuited or the judgment affirmed, the defendant in error might proceed to execution after the year, without scire facias, because the writ of error was a supersedeas to the execution, and the plaintiff must acquiesce until he hears the judgment above. The reason for this is that, the stay of execution being with the consent and for the benefit of the judgment debtor, and the injunction or writ of error being his own act, he should not take advantage of them, nor could he be surprised or prejudiced by the delay, because that...