| Minn. | Feb 25, 1884
This is an action for the determination of an adverse claim to certain lands. The plaintiff’s title is that of statutory assignee of Wilhelmina S. Douglas, under an assignment made by her for the benefit of creditors, on March 3, 1879, (when she owned the property in fee,) and filed in the proper clerk’s office on March 4th, following. Defendant’s adverse claim is based upon the alleged lien of a judgment confessed by said Douglas in its favor. The “statement” for confession was made and filed with the clerk of the court on March 4, 1879, and on -that day the clerk made entries in his docket showing that the judgment bore date March 3, and was docketed March 4, 1879. The trial court finds that the judgment bears date. March 4, 1879, but that it was in fact indorsed on the “statement” and entered in the judgment-book, in October, 1879, and not before. Until the indorsement or entry is made there is no judgment, (Wells v. Giescke, 27 Minn. 478" court="Minn." date_filed="1881-04-01" href="https://app.midpage.ai/document/wells-v-gieseke-7963842?utm_source=webapp" opinion_id="7963842">27 Minn. 478,) and until there is a judgment there can be no valid docketing. Hence, (if the finding of the court was competent,) as a matter of fact, at the time when the assignment was perfected, the defendant’s judgment was not in existence, and of course no lien upon the lands; and as plaintiff as assignee took whatever the assignor had at the time of the assignment, it follows that he took the fee free from any such lien.
But it is said that the finding was not competent, because the judgment and docket entries are records of the district court, and as such import absolute verity, and cannot be collaterally contradicted. Ferguson v. Kumler, 25 Minn. 183" court="Minn." date_filed="1878-07-12" href="https://app.midpage.ai/document/ferguson-v-kumler-7963474?utm_source=webapp" opinion_id="7963474">25 Minn. 183, is cited in support of this proposition. That was an action between the immediate parties to a judgment sought to be attacked; as to them, the record was held to be conclusive as against a collateral attack. Dayton v. Mintzer, 22 Minn. 393" court="Minn." date_filed="1876-02-11" href="https://app.midpage.ai/document/dayton-v-mintzer-7963131?utm_source=webapp" opinion_id="7963131">22 Minn. 393, (also cited,) rests upon analogous grounds.
In the case at bar the plaintiff is a stranger to the alleged judgment, — just as much so as would be one of the creditors whom lie represents, — and hence he is not estopped or in any way bound by it. 1 Greenl. Ev. § 532. Under the statute, as assignee, he takes and holds the assigned property “in trust for the benefit of creditors” of the assignor. Hence it is his plain duty to protect and defend it, and, so far as lies in his power, to make it available to the payment
We see no reason wdiy this may not be done in the present action, without any correction of the record. It is an action to determine defendant’s adverse claim. The answer sets up the judgment, and the reply the facts which go to show that the record is false. An issue as to the validity of the apparent lien is thus-distinetly raised in the pleadings. The facts set up in the answer, and found by the court, also show that, as respects the plaintiff, the record is not only false, but in law fraudulently false, though, as the court finds, there may have been no moral fraud. That fraud vitiates everything is a rule without exception, and which applies to a judgment as well as to
This disposes of the substance of the defendant’s appeal.
Judgment affirmed.