68 Minn. 233 | Minn. | 1897
The admitted facts are as follows: The land in dispute is situated in Nicollet county, and on November 19, 1891, belonged to one Marsh, a resident of the city of Mankato, Blue Earth county. On that day, Marsh, in conformity with the insolvency law of 1881, executed to plaintiff, a general assignment of his property for
On November 21, 1891, Randall caused execution on her judgment against Marsh to be issued, directed to the sheriff of Nicollet county, under which a levy was made on the land in question, but the execution was afterwards returned unsatisfied. Tn January, 1892, Randall filed with the plaintiff a transcript of her judgment as a claim against the estate of Marsh, and in the affidavit verifying it stated that the claim was not in any manner secured. Subsequently Randall caused a second execution on her judgment to be issued, directed to the sheriff of Nicollet county, under which defendant Block, as such sheriff, levied on the land, and was about to sell it to satisfy the judgment, when the plaintiff brought this action to enjoin the sale, and to have it adjudged that he, as assignee of Marsh, was the owner of the land, and that Randall had no lien thereon by virtue of her judgment. There was no evidence as to whether Randall, at the time her judgment was docketed in Nicollet county, had actual notice of the assignment from Marsh to plaintiff except so far as an inference one way or the other may be drawn from the foregoing facts.
The trial court found as a fact that Randall did not have notice or knowledge of the assignment from Marsh to plaintiff at the time of docketing her judgment in Nicollet county. This finding is assailed by plaintiff as not supported by the evidence. The court further held as conclusions of law that Randall’s act in proving her judgment as
That the mere proof of a secured demand as a claim against the estate of the insolvent does not amount to a release or surrender of the security was decided in Swedish v. Davis, 64 Minn. 250. We have decided that the provision of G-. S. 1894, § 4228, that no deed of assignment for the benefit of creditors shall be valid, or of any force or effect as a conveyance of land, until a copy thereof is filed for record in the • county where the land is situated, is merely a registry law, and that, ■ although unrecorded, such deed is valid as between the parties and as to those having actual notice. Paulson v. Clough, 40 Minn. 494, 42 N. W. 398. It is the settled doctrine in this state that where a party claiming under a title junior in point of time is resisting a prior unrecorded title, the burden is upon him, at least where he is the original party to the instrument creating such junior title, to prove that he purchased or acquired such title in good faith. Bank v. Ellis, 30 Minn. 270, 15 N. W. 243; Roussain v. Patten, 46 Minn. 308, 48 N. W. 1122; Wright v. Larson, 51 Minn. 321, 53 N. W. 712. See, also, Newton v. Newton, 46 Minn. 33, 48 N. W. 450; Plymouth v. Seymour, 67 Minn. 311, 69 N. W. 1079. The trial court was therefore in error in the view of the law expressed in his memorandum, but, as this memorandum is no part of the record, this would be no ground for reversal if the evidence justified the finding of fact.
Order reversed, and new trial granted.
Buck, J., took no part.