Daily globe., 1878-04-08

notice on the part of the plaintiff and those
through whom he claims, must be held to have
been guilty Of laches, and to have abandoned
any claim to any benefit from the purchases
aforesaid, made by his said four co-cestuiq,.e
t77lsts.
OPINION.
On September 10, 1857, VIM. H. Randall
being indebted to certain bankers of st. Paul
in the sum of $176,288.80, executed notes
for the amounts to each respectively and
mortgage upon real estate to secure the
same. The notes and mortgage we're made
to run to Joseph NJ Marshall, who at the
same time transferred the notes to the cred
itors SO as to give to each, respectively, notes
for the amounts owing to him. Marshall at
the same time executed and recorded
declaration of trust to the effect that ne held
the mortgage in trust for such creditors in
nroportion to their respective demands. The
mortgaged premises were encountered by
five Judgment liens paramount to the mort
gage. Upon four of the judgments execu-
ton sales we're had of portions of the mort
gagged premises
For the purpose of protecting their secur-
ity the benefciaries in the mortgage in pro-
portion to their respective interests and upon
Marshall's requisition advanced money, with
one of the five judgments, and under the
same redeemed all the property sold upon the
former execution, except the portion which
was sold at one of the sales to one Oliver.
No one having redeemed from Marshall, he
received sheriff deeds of the unredeemed
property.
February 10th, 1858, Marshall executed
and recorded second declaration of trust
reciting the facts aforesaid relative to the
| judgments and redemption titles and all
right, title And interest acquired, or
which heW might acquire by
virtue of such fedemptions for the benefit of
the parties for whose benefit the first de-
claration of trust was executed, and their
representatives and assigns in accordance
with their interests and equitable rights in
the premises. The plaintiff is the owner
and holder of three of the notes made to
Marshall, as above stated, subject to the in
terest therein of r. B. Galusha as assignee
of w. L. Banning & Co., all of the other notes
made to Marshall all owned by defendants AL
lis and Davidson except one, which is owned
by defendant Warner. 1T is found by the
court below that a certain alleged judgment
in favor of Henry II. Hart against VIM. 81
Randall was prior lien upon the property
embraced in the mortgage to Marshall.
This judgment came in question in Mar
shall vs.. Hart, MINI. $50, upon substan-
TALLY the same objections made to it in the
case at bar and was held to be valid, as re.
spects the question of the validity of the
Hart Judgment, the interests of all of the
, parties to the action at bar were represented
in that action. The judgment in Marshal
VS.. Hart is therefore as respects the question
of the validity of the Hart judgment, bind
ing and conclusive upon the parties to thii
action for they were all either parties to tn,
Judgment in Hart against Marshall, or th'
privies of those who were parties. It fol
lows that upon the question of the validity
of the Hart judgment in the present action
the Judgment in Hart VS.. Marshall might hav'
been pleaded in estoppel. 1t was not 81
! pleaded. Neither does it appear to hav'
: been introduced in evidence as it might have
c been, although not pleaded in estoppel
: Stephens on evidence article 43. But, al
though the defendants have not availe'
I themselves of it as they might have done
we think it ought to control in this case
upon the principle of stdredcclsus. It is
decision of this court upholding the validit
: of the identical judgment involved in tn
: action at bar. Whether it is necessary t
n treat it as decision of the general questio
> of the validity of judgments like that her
n involved or not, it is a decision in favo
0 of the validity of this particula
J, Judgment in an action between pal
o ties who represent all the parties to thi
o action. We shall therefore follow it withor
hesitation. In the same case (Marshall VI
$ Hunt) it was further held that the Ha1
e Judgment was valid lien upon the proI
erty covered by the mortgage to Marshal
e lying i'm Ramsey county. For. the reason
9 above given we follow this holding also. III
s. Judgment and it's lein are therefore to
te taken as valid. Several objections are take
# to the execution issued upon the Hart jude
N ment. The objection that there was n
,e Judgment upon which to base it is dispose
r. of by what we have already said. 1t appea
=, that Hollinshead, an attorney of the court
- which the judgment was rendered, but wi
- was not one of the attorneys of the plaintiff
u attorneys of record in the action befo
. Judgment, caused a notice signed by hin
se self as plaintiffs attorney to be served upe
ne Randall the judgment debtor, PERSONAL
eo to the effect that on March %, 1885, a motto
u would be made before the proper judge f
IS. leave to issue execution upon the judgmer
" for the reason that the same was wholly d.
rs and unsatisfed, and that in support of Il
,ir motion he would read the record in tt
is action and his affidavit "a copy of which a
ms companied the notice) to the effect that
id was the attorney at law and agent of plai
"a, tiff in the action. that the judgment h
If been duly rendered and docketed, and W
wholly unsatisfed and due. Nothing exec
- as above appears among the records of t
~ action showing the appointment or substit
IRE ton of Hollinshead as attorney for plant
use in the action. It is found that an ord
as signed by the judge of the court "
me duly fled on March 29th, 1859, directing {
nd ecution to be issued upon the judgment
;he the amount thereof, with interest. Up
tn this state of facts the execution which "
Dse issued March goth, 1859, in usual form MI
i'm b. held to have been duly and regula
IN issued. It was not necessary that the apr
"a "a cation for it's issue should be made by I
l' attorneys in the action before judgme
VIZ Section II, chapter 82, public statut
oi (Which is now section 13, chapter 88, gene
ne statutes,) requiring notice of change of
est torney and substitution of new attorney
nor be given, has relation only to changes a
,eir substitutions made before. and not
eys changes or substitutions made at
art judgment. A judgment creditor n
aid employ new attorney to enfo
Co