Daily globe., 1878-10-11

of the court,) and upon similar
grounds that they were not SO made. It fol-
lows that the deed of Nov. II, 1865, from the
county board to Kilroy, conveyed nothing.
,o Inns Drlngs us to the conveyance of July 80,
1870, from Hart to Pritchard Under tie de-
cision of this court in Dickinson rs. Kinney, s
Mimi, 4O9. which, SO far as we are aware, has
never been disturbed, Hart by his purchase
at his execution sale, t.ok all the estate of
Randall found by the referee to be the fee) in
the right of redemptioners. This estate the
county did not acquire by the transaction be-
tween it and Hart, for want of capacity. We
are unable to see how that trans
action could operate in any way
to protect the lien of the county Judgment or
he acquired by his purchase. IF it could have
such operation at all it must be by an estoppel
In pals. There is no basis for such estoppel.
for both Hart and the county are to be taken
to have known exactly what the legal effect of
the transaction was. There could then be no
Commissioners of Hennepin County VS.. Robin
son, l6 Minn., 381, or within the definition
given in Pence VS.. Arbuckle, % Mimi, 42O,
where it is said that 'an estoppel in pals arises
when one by his acts or representations. or by
his silence when he ought to speak out, inten-
induces another to believe certain
facts to exist, and such other right
fully acts on the belief so induced in such
manner that if the former be permitted to de-
ny the existence of such facts it will prejudice
the latter
9, See also Plummer - vs.: Mold; q % Mimi, IS;
Shlllock VS.. Gilbert, % Mimi, 1856. ~
Notwithstanding then the transaction be-
tween Hart and the county, the estate and title
which Hart acquired by his purchase remained
In him. By his conveyance of July 80, 1870
Hart passed this estate and title to Pritchard
who subsequently conveyed the same to Kilroy.
The judgment against Kilroy owned by de-
PENDANTS, Wilder & Co. and Preston, accord
ingly became lien upon Kilroy's interest in
The premises unless Kilroy held the same as a
homestead, and therefore exempt from iudg-
ment liens.
The referee has found that from a
time anterior to the recovery of the
time of the conveyance of the south
half of the premises to Lyon, Kilroy leyied
upon, used and occupied the whole of the
premises as his homestead, and that he '.levied
upon, used and occupied, y the other half of
the premises as his homestead until his death,
on or about Nov. 9th, 1872. We think the
evidence (although not 80 explicit as it might
be} sustains these findings: That Kilroy owned
the premises from the time of the conveyance
by Pritchard to him in 1870. We have already
seen they were therefore ''owned and occupied
by him as provided in the first section of the
homestead act. It follows that the judgments
aforesaid never became q lien upon them, and
that therefore the defendants, owners of the
Judgments, have no interests in claim upon
the premises In controversy. The plaintiff, on
the other hand, has upon sufficient evidence
found to have been at the time of
the commencement of this action, and before
and ever since, in the actual and peaceable pos
session of the premises in controversy, and in
addition to this he shows paper title in fee to
the south half of the premises through the
deed from Lyon.
Upon this state Of facts we see no reason
why the finding of the referee to the effect
that the plaintiff is the owner and we'll seized
in fee simple of the premises in controversy
and the further finding that the defendants
Wilder Co. and Preston have no right, in
terest or claim, or lien in or to upon said
premises and the corresponding conclusions of
law should not be sustained.
Two or three exceptions taken by defendants
may be briefly disposed of. The deeds
from Kilroy to Lyon and from Lyon to plain
tiff were properly received as evidence of
plaintiffs title to the south half of the prem
ises in controversy.
The premises conveyed being, as the evidence
tended to show, part of Kilroy's homestead,
the homestead law permitted him to make the
conveyance without subjecting them to levies
in favor of defendants judgments.
As to the judgment and proceedings in the
action brought by the Olivier heirs against
Douseman and others it is apparant from the
view which we have taken that they were en-
tirely immaterial in this case, because their
only value consisted in their tendency to sus-
tain the title which the plaintiff attempted to
derive from the heirs of Olivier. In the
view which we have taken, the Olivier
title was entirely wiped out by the sale to Hart
on his judgment The Olivier title, therefore,
loses all Importance. The plaintiff derives no
estate whatever from it, and the evidence in
troduced in its support becomes altogether i'm
material, and it is not only immaterial, but
harmless, because it could have no bearing or
effect upon the proof of the Hart title, and
that is the title which is sustained.
The judgment is affirmed. BERRY, j.