65 Minn. 84 | Minn. | 1896
The allegations of the complaint are that on February 25, 1895, the plaintiff obtained and docketed in Hennepin county a judgment against the defendant Sidle, which is still unpaid, and upon which execution had been issued and returned unsatisfied; that at the date of the rendition and docketing of the judgment Sidle owned certain real estate in Hennepin county, the absolute ti-
Plaintiff does not, and could not, claim that he is entitled to have these deeds set aside; but he contends that this fraudulent recital in the deed from Sidle to the bank, that the bank had always been the beneficial owner of the land, and that Sidle merely held the title in trust for it, amounted to an obstruction calculated to impress doubt and apprehension in the minds of purchasers, and thus prevent them from bidding in the property, and therefore that he was entitled to maintain an action to have the obstruction removed before selling the land on execution, in order that it may realize an adequate price, and thus facilitate and effect the collection of his judgment. There is no doubt of the right of a creditor who has a judgment lien on land to maintain an action to remove an apparent' obstruction to the seizure and sale of the property on execution. The most common examples of such obstructions are fraudulent conveyances or incumbrances of the property prior to the docketing of the judgment, by which it is made to appear that the judgment either never became a lien on the land, or, if it did, that it was subordinate to some other lien. An obstruction, in the legal sense of the word, which will entitle a judgment creditor to maintain an action for its removal, does not include everything which the debtor
We note the language of Freeman, Exns. § 424, cited and relied on by plaintiff’s counsel; but that the author did not use the term “apparent obstructions” in the broad sense contended for is evident from the cases cited in support of the text, none of which support the contention of counsel. We have also examined all the cases cited by .counsel, and in every one of them the “obstruction” was of the character we have suggested. The only two cases which have even the semblance of supporting counsel are Fowler v. McCartney, 27 Miss. 509, and Myers v. Hewitt, 16 Ohio, 449; but an examination of the facts will show that neither of them are in point. In view of the statute of Mississippi that the lien of a judgment, as against bona fide purchasers, expired in five years, in Fowler v. McCartney it appeared on the face of the records that the plaintiff’s judgment lien had expired as against the defendant, but in fact it had not. for the reason that the conveyance to him from the judgment debtor was not bona fide, but fraudulent, and without consideration; a matter which rested in pais. In Myers v. Hewitt a condition of things analogous in principle had arisen under a statute of Ohio which provided that, where there is a senior judgment and no levy within a year, and a junior judgment and a levy within a year, the junior judgment should hold against the senior judgment. The action will not lie, and the demurrer was properly sustained.
Order affirmed.