124 N.W. 1116 | N.D. | 1910
This action is in claim and delivery to recover possession of a building situated upon lot 3, section 27, township 129, range 53, in Sargent county, N. D., known as a creamery. The answer is a general denial. At the close of all the testimony the trial court directed a verdict in favor of the plaintiff. From an order denying a motion for a new trilal defendant appeals to this court.
The facts are as follows: On the 9th day of August, 1897, one Louis Hanson, also known as Lars Hanson and L. M. Hanson, filed a homestead entry on lots 1, 2, 3, and é of section 27, township 129, range 53, in South Dakota. This land lies on the state line
Defendant, on the 23d day of October, 1906, made final proof for said land, and received a patent therefor on the 15th day of June, 1907. After the institution of this action an action in equity was commenced by the defendant against plaintiff, iff which he and the sheriff were enjoined from the moving of the building until the termination of this action. Appellant assigns numerous errors, but the determination of this action depends wholly on the question as to whether, under all the evidence, the court erred in directing a verdict in favor of the plaintiff, and in denying defendant’s motion for a new trial. These rulings must be sustained.
Appellant contends that the building in question is not personal property, but a fixture attached to and a part of the land. In this she is in error. Parties are at liberty to make any agreement or arrangement with regard to their property that they see fit, and to give to fixtures the legal character of realty or personalty at their option; and, if the agreement is such a one as will make the property personal property, as between the parties, it is personal property, and may be so treated. Myrick v. Bill, 3 Dak. 284, 17 N. W. 268; Cooley on Torts, 427, 430.
The judgment, execution, report and sale, and sheriff’s certificate were admitted in evidence over the objection of the defendant, who now strenuously insists that the judgment was incompetent because she was not a party to the proceeding.. We think is was competent as establishing a link in the chain of title to the building. It was necessary for the plaintiff, in order to recover, to show that the title of the creamery company to the building had passed to him, and it was necessary for him to show such passage of -title in whatever manner i(t took place. A judgment at law or 'decree in equity,'when it constitutes a link in a chain of title, is competent and admissible evidence, in that character and for that purpose, not only against the?
The general and well-settled rule that a judgment binds only parties and privies is unquestioned. But there is an exception to this rule, as firmly settled as the rule itself, and that is that a former judgment establishing rights and relations between the parties to that judgment, while it is never admissible to defeat or divest any right existing in a person not a party or privy thereto, is adtnissible against such persons for the purpose of proving that the plaintiff in the former judgment sustained to the defendant therein the relation established thereby, and was clothed with whatever right the defendant therein had, which was awarded to the plaintiff by the judgment, saving only the right of the third person to impeach the former judgment for fraud or collusion. It was competent evidence that the plaintiff in that judgment, and by force thereof, extinguished any right of the creamery company and the other defendant in the building in question. It in no way determined the claim of the defendant here that she had a title prior to and paramount to the alleged title of the plaintiff. It did determine, however, as between these parties, that the plaintiff stood in the shoes of the creamery company to assert whatever title and right of possession it had as against the defendant. There are many cases where a former judgment is admissible against third persons not parties or privies. It may form a link in a chain of title, and be the foundation of a subsequent conveyance. The party claiming under the judgment may prove it as one of the muniments of his estate. The former judgment, execution, and sheriff’s sale in this case operated as a transfer from the creamery company to the plaintiff in this action of all its rights and has the same force as if it had been made by an instrument in form executed by the creamery company to the plaintiff in this action. If the plaintiff could not show his title to,the building by the judgment, execution, and sheriff’s sale, then he could not
In Gage v. Goudy, supra, the court says: “It is true, in general, that judgments and decrees are evidence only in suits between the parties thereto and their privies; but that rule is inapplicable in a case like this, where the decree is not introduced as per se binding upon any rights of the defendant, but as tending to establish a link in the chain of the complainant’s title. Without said decree it would be impossible for the complainant to prove the partition of said land, and the assignment of the several lots to the different tenants in common. It might , with as much propriety be contended that the plaintiff was not at liberty to introduce in evidnce his title deeds because they were res inter alios acta. As said by Mr. Freeman: “A judgment may constitute a part of a chain of title to real or personal estate; or, though not amounting to title, it may show the character of the possession of one of the parties to- the suit. In either case it is admissible in evidence for or against strangers, as well as for or against the parties to the original suit. Whenever a judgment transfers title, or is the foundation of a claim to possession, it is admissible upon the same principle as a voluntary conveyance.”
Appellant attempted to show by the cross-examination of the plaintiff herein that there w,as no service of the summons in the action entitled Lidgerwood State Bank v. Interstate Creamery Association et al., upon the defendant therein. The court sustained the objection of the plaintiff to the evidence as incompetent, irrelevant, and immaterial, improper cross-examination. Appellant then made the following offer: “Defendant now offers to prove by the cross-examination of this witness that there was no service of summons in the action entitled'Lidgerwood State Bank against Interstate Creamery Association et al., upon the defendants therein” — to which offer
Appellant made no other attempt to go into the questi.bn of jurisdiction. Appellant attempted to show that the mechanics’ liens, on which the judgment in the former action was rendered, were invalid. We think it is entirely immaterial whether such mechanics’ liens were valid or invalid. That was a matter litigated in the former action, and one in which the parties thereto were the only parties interested. The other errors assigned are wholly without merit.
The order appealed from is affirmed.