La Penotiere v. Kellar, 137 N.W. 382

La Penotiere v. Kellar

137 N.W. 382 | S.D. | 1912

WHITING, J.

This action was brought for the purpose of quieting title to certain lands situate in Fall River county. Trial *505was had before the circuit court without a jury, and findings of fact and conclusions of law were entered in favor of defendant. Upon such findings and conclusions a judgment was rendered, anti a motion for a new trial having been denied, plaintiff has appealed to this court from such judgment and order denying a new trial.

[i] The respondent, in liis brief, moved that the bill of -exceptions be stricken from the record, and, in support of such motion, incorporated in his brief copies of certain affidavits that he claims were presented to the trial court in opposition to the settlement of such bill of exceptions. Appellant asks this court to strike out of respondent’s brief the parts thereof pertaining to such motion. Inasmuch as a motion to strike out a bill of exceptions can only be brought on before this court in accordance with the rules of this court governing motions and orders to show cause, that part of respondent’s brief relating to such motion is immaterial for any purpose and must be disregarded by this court even if there was no motion to strike same from brief.

One H. was the owner of the land in, question, and a judgment was procured against him by one F. & Son, which judgment was entered and became a lien on said land on June 21, 1893. On February 23, 1894, a judgment was rendered against F. & Son, Upon this latter judgment an execution was issued and levied upon the first-mentioned judgment; said levy being on February 2, 1895. Sale was had upon such execution on February 23, 1895, and the defendant Kellar became the purchaser of such judgment against H., receiving an assignment of such judgment 'executed by the sheriff of Fall River county. Such assignment was thereupon filed in the office of the clerk of the circuit court of Fall River county. On or about January 23, 1895,'the sheriff of Fall River county, under an execution issued upon the judgment of F. & Son against H., levied upon the land in question and upon January 30, 1895, gave notice of a sheriff’s sale of said land under such execution; such sale to take place on March 16, 1895. Sa-id notice was signed by the sheriff of said Fall River county and also by the attorneys who were the attorneys of record for the judgment creditor in the procuring Of such judgment. On March 16, 1895, sale was had as noticed, and at such sale the defendant be*506came the purchaser of the land in question and received sheriff’s-■certificate. Afterwards and prior to the commencement of this action he received and placed of record a sheriffs deed issued upon said sheriff’s certificate. It is therefore clear that defendant became vested with the title to this land unless the plaintiff, under and by virtue of the following facts, has a 'superior-claim thereto.

Plaintiff received a conveyance of the land in question from H., which conveyance was made subsequent to the entry of judgment against PI. Evidence was received tending to prove the following facts: After the obtaining of such title, she learned of such judgment, and, learning that the land was noticed for execution sale, she took steps to ascertain what was necessary in order to redeem from such judgment and was advised by the attorneys whose names were attached to said notice of sale that it would be necessary for her to at once pay the said judgment in order to prevent the sale. She was advised by such attorneys that one Wm. Gardner was the real owner of said judgment and that she should pay the same to Gardner direct. She, accordingly, therewith wired the amount of such judgment to the said Wm. Gardner, and was afterwards advised by said attorneys that she had not remitted sufficient to cover the costs which had been incurred. On March 22, 1895, she forwarded to an attorney money to pay the balance.

Gardner testified that some time in October, 1894, he became-the purchaser of, and received an assignment of, the E. & Son judgment against PI., but that he failed to file the assignment in the office of the clerk of court: that he was the true owner of the judgment at the time of the issue of the execution thereon; and that, as such owner, he received the money which was wired to him by the plaintiff. The trial court found that Gardner never was the owner of the judgment.

[2] Appellant contends that the trial court erred in admitting in evidence the judgment roll in the case E. & Son v. H., for the reason that the judgment did not bear the attestation of the clerk of court. This judgment did not appear as a part of the record in this court; but, in the findings of the trial court, it does appear that the judgment was duly filed and docketed, and that the same *507was rendered in 1893, which was long prior to the passage of chapter 166, Session Laws 1901,. requiring the attestation of the-judgment by the clerk.

[3] Appellant contends that the trial court was in error in finding that Gardner did not become the assignee and owner of the judgment against H. The evidence upon this question of fact was very conflicting, and, after a careful review of the same, we-are unable to say that there is a clear preponderance of evidence-against the finding of the trial court. Appellant contends that, the court erred in the admission of certain letters and of proof of a conversation had between Gardner and Kellar; but we think there is no merit in this contention.

[4] The only serious question arising under the record, herein, other than that of the ownership of the judgment against H., comes from the fact that Kellar purchased such judgment after execution had been issued thereon and before sale and allowed the sale to take place without any change in the notice as published, thus constituting- the attorneys for the judgment creditor his-ostensible attorneys in all matters rightfully pertaining to such sale. It is the contention of appellant that such attorneys had the power to and did bind Kellar, if Kellar was the owner of such judgment, when they directed the plaintiff to pay such judgment to Gardner. Kellar, by allowing such notice to continue after his purchase of the judgment and by allowing sale thereunder, constituted the judgment creditor’s attorneys, his attorneys; with the-power to bind -him to the extent that they -could haye bound F. & Son. Gill v. Truelsen, 39 Minn. 373, 40 N. W. 254.

Under the statute of this state the attorney of record in the-procuring of a judgment is given power, either with or without execution sale, to collect the judgment and, upon such collection, to satisfy the judgment of record. It is therefore clear that any payment that may be made to such an attorney is a payment upon the judgment and a -satisfaction pro tanto regardless of what the attorney may do with the money received, and this because, in the receipt of such money, he would be acting within his power 'as -such attorney. But it is one thing to say that the attorney of the owner of a judgment (be such owner the original judgment-*508creditor or an assignee of same) has the power to receive money upon such judgment, or even the power to say where or to whom the money shall be deposited or paid for his client, and quite a different thing to say .that such an attorney can bind his client (the owner of the judgment) by directing the payment of money to some third party not for his client, but to such third person as the owner of such judgment. Plaintiff, on being advised that Gardner was the owner of the judgment and directed to pay the money to him, could not but know that these attorneys, as agents of F. & Son or of any assignee of F. & Son other than Gardner, were without power to authorize payment to Gardner as the owner. Where the judgment debtor, or one standing in his place is advised of the fact that the judgment has been assigned, he acts at his peril in the payment of such judgment to airy party as such assignee, without ascertaining from the records of the proper office or from other competent evidence that such part}', is the assignee. He cannot rely upon the statement of the agent or attorney of the original judgment creditor. It is clear that the attorneys could not have bound F. & Son, arid neither could they bind Ivellar by any attempted authorization of the payment of money to a third person as the owner of the judgment.

[5] But even if, under the facts proven herein, the plaintiff had been authorized to make the payment to Gardner, and such pajunent had been a satisfaction pro tanto of the judgment, yet it appears that, owing to the costs that had accrued, the amount paid Gardner was insufficient to satisfy said judgment in full. It was therefore lawful, even charging Kellar and the sheriff with notice of the payment made Gardner, for them to proceed with the sale in order to realize balance due on judgment.

[6] If the sale was then made to satisfy too great a deficiency, or if, owing to the 'small amount remaining unpaid, but a part of said land should have been offered for sale, the sale is not thereby rendered void but at best' but voidable. Section 34, Freeman on Void Judicial Sales (3d Ed.) ; Osgood v. Blackmore, 59 Ill. 261. It cannot be contended that there has been any redemption from this execution sale, even if the sale were for too great an amount, as there is nothing to show that the amount of money sent by *509plaintiff on Match 22, 1895, was sufficient to- redeem from such sale, or, if sufficient, that it was ever paid over to defendant or anyone representing- him.

The judgment of the trial court and order denying a new trial are affirmed.