62 Minn. 135 | Minn. | 1895
Action in partition, brought by one of the plaintiffs as the widow, formerly, of one Byrnes, deceased, and by the others as his heirs at law, plaintiffs claiming to be the owners in their respective undivided rights of an undivided one-tenth of the premises in question. The defendants’ title to this one-tenth depends wholly upon the validity of an execution sale made upon a judgment in which said Byrnes was the debtor and one Harriet Lamb the creditor. The court below ordered judgment upon the facts found in favor of the first-named plaintiff as to her share and •against the heirs at law. The appeal is by the latter from an order refusing a new trial.
The facts are simple and undisputed. The premises are situated in Hennepin county. On January 6, 1876, the judgment was duly rendered and docketed in Rice county. Two years later, in .1878, the debtor died intestate, leaving no personal property. Whether administration was ever had on his estate does not appear. About five years afterwards, in 1883, and not before, a transcript of ihe judgment was filed, and, in form, the judgment was docketed in Hennepin county. One McCarthy, to whom the judgment had been assigned, then caused an execution to be issued, directed to ’.he sheriff of Hennepin county, and the sale in question was made by virtue of this execution, McCarthy becoming the purchaser. No redemption was made from the sale, and in 1885, after the time for redemption had expired, McCarthy purchased from the then owners the other undivided interests in the property. These defendants have succeeded to his right and title, have made valuable improvements (just when was not shown), and have paid taxes up to the year 1891.
By G-. S. 1894, § 5447, it is enacted that “notwithstanding the death of a party after judgment, execution thereon against his property may be issued and executed in the same manner and with the same effect as if he was still living, except that such execution cannot be issued within a year after his death.” Possibly, if we were called upon to construe this section standing alone, its language would compel us to hold that subsequent to the decease of a judgment debtor it would be possible to docket the judgment in the county where rendered, or elsewhere, secure a specific lien on real property of which the debtor died seised, issue and levy an execution on such property, and satisfy the execution, with the same effect as if the debtor still lived. Indeed, the logic of such a decision would lead to the conclusion that personal property belonging to the estate could be seized and sold under like circumstances. But when construing this particular section of our statutes relating to executions we are obliged, under well-known rules, to examine and consider other sections which relate to and affect the same subject-matter. All must be construed together. We have quite a number of sections or parts of sections in G-. S. 1894 which bear upon the question before us, and all of these to which we shall refer were in force when Byrnes died, and when the proceedings were had through which defendants claim ownership.
The rules which regulate and determine title to real property by descent in the absence of a testamentary devise are found in sections 4470, 4471, and it is clear that immediately upon the death of Byrnes, intestate, the title to the real property now in dispute vested in his widow and children subject to the payment of his debts.
The statute which authorizes and provides for obtaining a judgment lien, how and upon what property a lien may be secured, is-section 5425. The lien obtained by a docketing of the judgment originally, or by a transcript, is limited to such real property as the debtor may own in the county at the time of the docketing, and such-as he may afterwards acquire within the life of the lien. While we often speak of property as belonging to the estate of one deceased, it would be absurd to contend that any one but a living person could be the owner of property, and equally as absurd to say that for the purposes of section 5425 the ownership of real estate continued in a person after his death. We might with equal force and reason assert that one deceased could acquire property — say, by inheritance — upon which a judgment lien could be had. If, then, the-ownership of property terminates with death, as it must, and if the' lands of an intestate pass- instantly upon the decease to the heirs by operation of law, how could a lien be obtained in the case at bar upon which to base a valid execution sale of the property in dispute? That the title did pass to the widow and heirs, and that they immediately became the owners, subject to liens, general or
We are of the opinion that section 5447, when considered in connection with other statutes, to which we have referred, must be construed as limiting the right to have execution issued to enforce the collection of a money judgment after the death of the judgment debtor, and construed as simply and only authorizing' such issuance in cases where, and such executions can only be levied on real prop
In so construing section 5447 we have had no assistance from the decisions of other states, for we have been unable to find a like statute in any other state except Oregon. In the case of Bower v. Holladay, 18 Ore. 491, 22 Pac. 553, the supreme court of that state, evidently with considerable doubt and misgiving as to what might be the practical results, and admitting that its views were “liable to be startling,” held that under a section of their Code, worded as is section 5447, a judgment creditor was entitled to have an execution issued •on a judgment against the property of the debtor, or for the delivery >of real or personal property, notwithstanding the death of the debt- or; and that construction was given-in a case where the seizure had been of personal property, not real. Evidently, the court paid no? .attention to any other statutory enactment which might have thrown-light upon the legislative intention, and perhaps there were none. In view of this, as well as the hesitation manifested in the opinion,, we decline to recognize it as an authority at this time. A judgment -creditor who has acquired no lien prior to the decease of a judgment' debtor must proceed to establish and collect his claim and demand as a general creditor, and in the due course of proceedings in administration; or, in a proper case, he may have the remedy prescribed in section 5437.
In conclusion, it is well to say that the,record does not show, nor do the defendants contend, that either or any of the plaintiffs are «stopped by their acts or conduct from maintaining this action.
Order reversed.
Canty, J., took no part.