Daily globe., 1878-04-08

mentioned, by leaving and posting copies
| of the execution as provided IN case OF at 1
tachment Of real property in ch. 60, sec. 148.
Pub St. sec. s8, ch. 81 Pub. st. declared
that sail property liable to attachment is
liable to execution, it must be levied on In
| the same way that similar property is
attached, until levy property is not affected
by the execution.
In Tull;s VS.. Bromley, Minn., 277, this
court was of opinion that the words until
levy property is not affected by the execu-
tom applied only to personal property, and
that no formal levy after execution upon real
property was necessary. This opinion has
been followed in several subsequent cases.
/ Folsome VS.. Carti, 5 Minn.. 333; Lockwood
VS.. Bigelow, II Minn., 113; Bdweu VS.. Cole
man, IL Mimi, 49, But though a formal
levy has thus been held not to be necessary
to valid levy upon real property it has not.
so far as we are aware, been held that such
levy was not entirely proper as step in the
regular execution of writ of execution under
the law as it stood in the public statutes We
think it was regularly proper, and that there
fore the sheriff to whom the execution
in the case at bar was delivered may
justly be regarded as having commenced.
The point that the sheriff had no authority
to levy upon real property, unless he could
find no personal property (Which is not
shown) is disposed of by the presumption
that the sheriff did his duty. Having COM
menced the execution of his writ by levy
before the return day, the sheriff was au-
thorized to go on and complete it by a sale
after the return day. Barrett VS.. Asbestine,
Stone Co. Mg. April r. 1877. But it is
contended that this rule cannot operate in
this case, because the sale under the levy
having been postponed to January 9Th, 1860,
an action was on the Sd day of January,
1860, commended in the district court of
Ramsey county, by Marshall against Hart,
and the sheriff, in which on January 9Th
1860, an injunction was issued and served
upon the sheriff, enjoining him and his de-
puties from further proceedings with the
execution, and from making sale of any part
of the premises levied upon, until the further
} order of the court. No further proceedings
were had upon the notice of sale which had
} been given. On July 26th, 1860, the iniunc-
!, ton was dissolved. The effect of the in
junction was to stop the proceedings upon
the execution where they were. But the in
3 junction did not operate to kill the execu-
, ton which had been issued, nor to
;. destroy .or impair the levy which
7 had been made under it. It was
therefore competent for the sheriff after
: it's dissolution, even after the expiration OF
his term of Office, to go on and complete the
3 proceedings which he had commenced unde,
: the execution. This he did in this case by
, advertising sale of the premises levied up.
9 on for September 9Th, 1860, on which day q
d sale was had and the property levied upon
i with the exception of three town lots and 8
l half lot) struck off to Hart. For the reasons
I already adduced this sale must be held valid
s On September 18th, 1860 the sheriff ex.
Q ecuted and delivered to Hart certificate OF
Q sale of the lots and parcels Of land SO struck
: off to him which was duly recorded. Sub
Y sequently and at various times prior to thu
|, expiration of the period of redemption, Har
Q sold and transferred his rights and interests
o under the certificate of sale to Bidwell
Q Burial, Lash and Turrell, persons holding
Q some of the notes secured by the Marshal
|, mortgage. These sales and transfers wer
/ to each of such persons severally of tn
d rights and interests of Hart in specified lot
9. and parcels out of the whole number strucl
g, off to him at the execution sale. There wa
a no redemption from the execution sale an,
y the property was afterwards conveyed b.
le Sheriffs deeds in part to those who purchases
% from Hart and on part to their assigns.
N The court below finds the following
re facts, viz: That in taking their RESPECTIVE
)r assignments from Hart of his interests
II in the certificate of sale, ''Bidwell, Burial
r. Lash and Turrell did not act under or il
is pursuance of any mutual agreement, bu
ut each one bought as he, himself, though
8. proper, in order to secure his own interes
rt in the Randall notes and mortgages"
p That s:the plaintiff knew of these pun
II, chases of Hart's interest by Bidwell, Bul
rs RAIL- Lash and Turrell,'' at or shortly afte
le the time of said purchases, which were mad
be at different times between March 1st an
IN September 1st, 1861.
G. That at the time of the execution and d.
10 livery OF the Randall notes and mortgag
ed the firm of J. jaw Knox & Co. was con
in John Jay Knox; that thereafter and abol
ho the month of May, 1860, John ]. Knox will
rs drew from the firm, that thereafter and prit
re to the month of May, 1861, the three RAJ
n dali notes, delivered to ]. Jay Knox q Ce
on and secured by the Randall mortgage, c
ly, account Of which the plaintiff, J. Jay Kne
on brings this action, were duly assigned ar
or transferred to John J. Knox, who theret
ut, became and continued to be the sole own
ue thereof until some time in the summer
he 1870, when, for a reasonable consideratio
he he transferred the same to the plaintiff,
lc- Jay Knox, who has ever since bee
he and now is the owner and hold
in thereof. The court further finds that neith
ad the plaintiff nor John j. Knox ever made al
'as claim to the purchasers of Hart's intere
ept under his certificate, or to any either
the them; that said purchases enured to Il
tu- benefit of all the owners of said Randall
tiff notes, or of said plaintiff and John j. Kn'
Ter or either of them, or claimed any interest
vas the land embraced in said certificate the
ex- terest of Hart in which was SO purchased
for aforesaid or ever offered to contribute or
ION fund their proportion, or any proportion,
vas the moneys expended by said purchasers,
ust any of them, in purchasing such interest.
rly ever made any demand upon them, or eth
pill of them, to be allowed to come in and shs
the the benefits of said purchases, upon maxi
mt. contribution, or otherwise. The present {
les, ton appears to have been commenced
'ral July, 1870. It is also found by the col
at below that Joseph M. Marshall depart
7 to from this State in 1859 or 1860 and shas sir
and remained out of it, and has during all
to time since his departure wholly failed q
fter neglected to look after or attend to his
nay ties as trustee as aforesaid, or to enforce
rec payment Of the Randall notes by foreclosl
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