5 Minn. 333 | Minn. | 1861
By the Court
The indorser of a promissory note may, at any time after it becomes due, pay the amount to the legal holder, and at once proceed to enforce it against the maker, or in case several judgments have been obtained on such an instrument, against him and the maker, may pay the judgment against himself, take an assignment of that against the maker and enforce it in his own behalf. These are propositions too well settled to require a reference to authorities, and are fully sustained by the cases referred to in the appellants’ brief. And they necessarily dispose of the
The indorser has, in this case, paid the judgment and taken an assignment to a third person, who enforced it against the makers. This he had a perfect right to do, even without the intervention of a third person as assignee. He might have taken the assignment directly to himself.
But the plaintiff further claims that the execution after-wards issued to enforce this judgment, was never, in fact, levied upon the real estate in controversy. To this the defendants answer, that the Sheriff returned generally that he had “ levied upon the property — that such general return is suf-ficiet, and its truth or falsity cannot be enquired into in this action.
This Court held in Tullis vs. Brawley, 3 Min., 277, and Rohrer vs. Terrill, 4 Min., 407, that a Sheriff was not re
These decisions fully dispose of the second branch of the Plaintiff’s case, leaving only the question as to the lien of the judgment upon the homestead of the judgment debtors.
The real estate in controversy at the time the judgment above spoken of was rendered and docketed, was occupied by one of the judgment debtors as a homestead, and had been set off to him as such. It was "afterwards conveyed to the plaintiff in this action, but before the levy and sale mentioned in the pleadings. It is now urgedjthat because the property was, as a homestead, exempt from sale in the hands of the judgment debtor, it remained so exempt in the hands of his grantee, and that the judgment was never a lien upon it.
We cannot adopt this view of the case. The statute in forcé at the time made the judgment a lien from the time of docketing, on a all the real property of the judgment debtor in the county, owned by him at the time or afterwards acquired.” (Com. Stat., 566, sec, 76-7.) And although by another provision of the statute, (Rev. Statutes of 1851, p. 363, sec. 93,) the homestead owned and occupied by the debtor as 'a residence, was exempted from sale on execution, yet it does not appear to affect the lien? of the judgment given by the sections before referred to. This exemption from sale was continued even after the death of the judgment debtor so long as the premises were occupied as a homestead by the widow, (she continuing unmarried,) and until the youngest child attained its majority, or some one of them continuing to occupy the same as a homestead. It will be observed, however, that the statute, without mentioning the lien of the judgment, merely suspended the sale of the homestead so long as it was occupied as such by the debtor, his widow or minor
We hold that, under the exemption law, as it existed at the time this judgment was rendered and docketed, and the property sold, the lien of the judgment attached to the homestead as well as to any other real property of the judgment debtor— that the exemption of the homestead was only an exemption from sale on execution, while occupied by the debtor or his family, but did not affect the lien of the judgment. That when McKusic, the judgment debtor, abandoned the property as a residence, and conveyed it to another, the exemption ceased, and the judgment creditor had then the right to enforce his lien by a sale of the premises on execution, and that the grantee, Oarli, took the property, subject to the lien of the judgment.
It would seem also that the Legislature has given a similar construction to this law by the act of March 10, 1860 ; for in providing that a judgment debtor may now remove from, or sell the homestead, without subjecting it thereby to a sale on execution, it was found necessary to deprive judgments of any lien upon the homestead.
The point which the Plaintiff makes as to the verification of the answer, we consideras waived by receiving and retaining that pleading without objection. But giving the objection full force, it would not avail the Plaintiff in this action, for under the view we have taken of the^ case, he would not be entitled to a judgment had his whole case been admitted by the answer.
Judgment reversed.