Daily globe., 1878-10-11

GLOBE FRIDAY MORN
SUPREME COURT.
FULL TEXT OF DECISION FILED.
Martin s. James, respondent, Us. ". D. Cor
'aish, administrator Of the estate Of John p.
Kizroy, deceased, a. n. Wilder and others,
appellants.
OPINION.
The plaintiff, alleging that he is the owner in
fee simple of parcel of land of which he is in
possession, brings this action to determine
adverse claims made to the same by defend
ants. When the plaintiff had closed his case
the appealing defendants, Preston and Wilder
d Co., moved for dismissal of the action for
misjoInder of a cause of action to determine
the adverse claim made by one, with cause of
| action to determine the adverse claim made
by the others. The objection Gf it be one)
not having been taken by demurrer or answer
was waived. Gen. Stat, chap. &c. 49, "a, ",
49,.
The adverse claims set up by the appealing
defendants in this action were based upon
Judgment liens against TIE parcel of land of
which the plaintiff alleges himself to be owner
and in possession. It appeared from the find
ings Of the referee who tried the case that the
judgment of Wilder q Co. was entered, and
docketed April 18, 1867, and that of Preston on
July 5, 1867. When the appeals taken by
Wilder Co. and Preston came on to be heard
in this court at October term, 1877, the plain
tiff moved to dismiss the same upon the ground
that the judgment and liens had become ex-
tinguished by the lapse of ten years from the
time of the entry and docketing of the judg-
ment, no execution having been issued or
levied thereon SO that the appellants had ceas-
ed to have any lien (if any they ever had) upon
the parcel of land in controversy. Whether the
position thus taken in support of the motion
to dismiss is sound or not we do not deem it
necessary to determine at this time and upon
a motion for a dismissal. The judgment,
among other thirgs, adjudges costs to the
plaintiff in the sum of $135.67. Even if the
defendants have lost their interest in the land
in controversy in the manner mentioned, they
are still entitled to have the judgment appealed
from examined for the purpose of having it de-
termined whether the judgment upon the
merits was correct SO to entitle the plaintiffs
to the costs awarded. The case does not stand
exactly as it would if the defendants had lost
their interest in the subject of litigation by a
voluntary settlement by the parties of the matter
in controversy.
In that case this court might refuse to pro-
ceed with the hearing Of the appeal, for the
reason that if, on settling the matter in litiga-
tion, the parties have omitted to settle the
costs, it is their own fault.
But no such reason is applicable to this case.
The motion to dismiss is therefore denied.
It appears that by the Judgment in this case
defendants Wilder & Go. and Preston were en-
joined from issuing executions upon their
judgments. As to what effect the iniunctions
have upon the liens of these judgments, or the
right to issue executions upon them, we are not
to be understood as making any settled decis-
ion, though our opinion was intimated upon
the hearing.
We come now to The merits of the case.
So far as deemed material to the purposes of
this opinion the facts found by the referee are
as hereinafter stated. Sept. 1st, 1856, a judg-
ment was entered and docketed in favor of the
board of commissioners of Ramsey county
against VIM. 81. Randall.
Feb. 18th, 1858, the premises in controversy
were sold upon execution issued upon said
Judgment to Olivier
Dec. 9th, 1871, a sheriff. deed upon such sale
was made to the heirs of Olivier, who con-
veyed to the plaintiff.
On Sept. 18th, 1850, a Judgment was entered
and docketed in favor of II. W. Hart against
w. 81. Randall Sept. 18th, 1860, the premises
in controv ersy were sold upon execution issued
upon said Judgment to Hart.
Nov. 18th, 1S60 Judgment was entered and
docketed against Olivier in favor of the board
of county commissioners of Ramsey county.
January 25th, 1861, the premises in contro-
versy were sold upon execution issued upon
said Judgment to said board of commissioners
Aug. 21st, 1861, Hart, in consideration of the
payment to him by the county of Ramsey of
the sum for which the premises were struck off
to him with interest, executed sealed instru-
ment whereby he assumed to sell, transfer and
convey to said county all his right title, inter-
est and estate in and to the premises in contro-
versy, and to assign and transfer to said coun-
ty the sheriHs certificate of sale
issued to him upon the sale
to him as aforesaid and all the rights, benefits
and privileges derivable therefrom.
Dec. IA, 1861, the sheriff executed to Ramsey
county deed under the seal to Hart.
Jan. 81, 1862, the sheriff executed to the
board OF commissioners of Ramsey county
deed under the sale made TO said board on Jan.
25, 1861.
Jan. %, 1860, Olivier and his wife executed a
power of attorney to Glberton, authorizing him
to sell any real estate belonging to them in
this State and to give deeds therefor.
Sept 6, 1861, Giberton assuming to act as at
torney under such power executed a quit
claim deed to Dousman of all the right title or
interest of Olivier and his wife in or to the
premises in controversy, but there was no con-
sideration for such deed.
July I'D, 1852, Dousman and wife executed
to Ramsey county their quit-claim deed of said
premises, purporting to convey to said county
all their right title and interest in or to the
same.
Nov. 11th 1865, the board of commissioners
of Ramsey county executed warranty deed of
the premises to Kil-oy.
July 3Oth 1870, Hart quit-claimed the prem
ises to Pritchard, and shortly after Pr;tchard
qnit-claimed the same to Kilroy.
April 18th, 1867, defendants Wilder & Co. re-
covered and docketed a judgment against
Kilroy.
July 5th, 1867, Judgment owned by de-
fendant Preston was recovered and docketed
against Kilroy.
June 18th, 1872, Kilroy conveyed. the south
half OF the premises in controversy to Lyon.
June 20th, 1873, Lyon and his wife conveyed
said south half to the plaintiff.
In Lash VS.. Williams 8 Mimi. 496, it was
held that under the statute as it read prior to
1860, it was not competent for county to pur-
chase and hold real estate, except under the
statutory provision found in Pub. St., ch. l,
sec. 251, authorizing county ito purchase and
hold for the public use of the county lands ly-
ing within it's own limits;'' and that any pur-
chase except for such public use was invalid.
And In the same case s'public use" was de-
fined ''that actual use, occupation and
possession of real estate rendered neces-
sary by the proper discharge of the
administration or other functions of the county
through its appropriate officers as, for in
stance, the use of such real estate as sites for
county buildings. It was also further express
ly held that this disability of a county to pur-
chase and hold real estate, extended in the case
of purchase at an execution sale upon a judg-
ment obtained by the county against the treas
urer and his suretles upon his official bond,
since there was an absolute lack of power to
purchase and hold, except for the 'spublio use''
mentioned in the statute This case was upon
the principle of stare decisis followed in Shelly
VS.. Lash. IA Mimi, 498.
By section 2, ch. Is, laws 1860, the statute
was amended SO as to authorize county to