Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-09-10
Supreme Court
FROM PIERCE COUNTY.
is utter collapse and ultimate death
lward S. Mott, Respondent,

VS.. sF.- #
Wallace M. Holbrook. Appellant.
An attachment Was regularly issued
in Ramsey county and levied on real
estate in Pierce county in an action
of Holbrook VS.. Dabl; who as defend
ant after such levy confessed judg-
ment by a written instrument enti-
tied as was the pending attachment
action, but making no reference
thereto. Return on attachment was
made by the sheriff of Pierce county
within the statutory period therefor,
but after judgment had been entered
on an order based on the confession
of Judgment. After levy, but before
sheriff's return on4attachment and
before transcription of Ramsey coun-
ty judgment to Pierce county, Dahl
decided the land to Rother, who filed
his deed for record. Mott by mesne
c~onveyances from Rother became
owner of the land and brought this
action in Pierce county to quiet his
title as against Holbrook's lien by
attachment and Judgment transcript
ed, claiming the judgment was taken
as one entered upon confession with
out action ipso facto working an
abandonment by Holbrook Of his
pending action and lien of attach.
ment procured therein, and further,
that as a confession of judgment in
such alleged independent summary
proceeding the p%urported written con-
fession was insufficient and void.
Trial Court sustained Motifs conten-
tons and Holbrook appeals. Held:
Cd The Prescriptions from the
record are that the Judgment was en-
tered as one taken by confession in
the pending attachment action. .
ca If the record is ambiguous on
the issue of. fact, testimony and mat;
tiers of which the court may take
judicial notice may be considered,
from which it also must appear that
the judgment was taken as in that
pending action.
(3) The lien sby attachment re-
manned eXtant Independent of the
judgment entered in a county other
than where the land was situated,
said lien not merging until filing Of
sheriff's return in Ramsey county
and transcription Of Judgment to
Pierce county; and the entry of judg-
ment in Ramsey county before filing
of the sheriff's return did not dis
charge the lien in Pierce county.
(4) 1t was not necessary that the
judgment as entered refer to the at
tachment lien nor direct a sale of the
property attached in satisfaction
thereof, as the law imposes that duty
upon the attaching officer.
90 Under Sec. 5038, r.. G. 1905,
the lien acquired by attachment in
advance of the recorded transfer Of
the attached real estate places the
attaching creditor prima facie in the
position Of a purchaser in good faith
and for a valuable consideration Of
the property attached, with rights as
purchaser accruing on levy made un-
der Sec. 694S r. G. 1905.
co It is not the debtors actual
interest in the real estate that is thus
liened by attachment, but instead it
is his interest as shown by the rec
ords of the register of deeds office
affecting the real property attached,
our statute, Sec. 503S, changing the
rule otherwise applicable.
20 The attachment lien held val
i'd and not waived by lapse of time,
1t having been continually under at
tack by action since six weeks after
it was obtained.
Appeal from the District Court Of
Pierce County, Burr, j.
Reversed. Opinion by Goss, J.