136 N.W. 942 | N.D. | 1912
(After stating the facts as above). It will be seen from the above facts that plaintiffs deraign whatever title they have through a sheriff’s deed issued pursuant to an execution sale under a purported judgment rendered in an action wherein they were plaintiffs and one Ralph Maxwell was defendant, a transcript of which purported judgment was duly filed and docketed on April 10, 1905, in Sargent county, and thereupon such judgment, if valid, became a lien on all lands then owned by Maxwell in such county. Appellant claims, however, that Maxwell did not own such land at that time, but that he had sold such undivided one-half interest to him in the month of May, 1904, by an executed oral contract. This is challenged by respondents, but appellant’s counsel contend that respondents are not in a position to thus
In the Hagler Case the language used in the order was, “It is hereby adjudged that the plaintiff recover of the defendant the sum of . . . $25.46, and the clerk of court is hereby directed to enter judgment accordingly.”
In the McTavish Case the question arose in a different manner from that in the case at bar. There, the question merely involved a question of practice, viz., the right to appeal. Here it involves property rights of long standing, claimed to have been acquired through execution sale under the alleged judgment. In the McTavish Case the question was raised by a party to the proceeding, while here it is raised by a third person, — a stranger to the record. As well stated by Judge Engerud in Hagler v. Kelly, supra, at page 223 of the opinion: “The situation with which the court was dealing on the appeal in that case [McTavish
Whether the court, as it was constituted at the time the McTavish Case was decided, would have held the same as it did if the facts were as disclosed in the case at bar, .is very doubtful. At any rate we are constrained to hold, and do hold, that such rule should not be enforced at the behest of a stranger to the record, and especially after such a long lapse of time during which respondents, in reliance upon the regularity of the judgment and the proceedings thereunder, expended large sums of money, and this with appellant’s knowledge and implied consent. Indeed, we are disposed to the belief that at most the judgment was merely irregular or voidable, and not void; and that even though appellant might, if he had acted promptly, have questioned the same, he is, on account of the above facts, now estopped from so doing. We reach a conclusion on this point, therefore, adverse to appellant’s contention.
We will next consider the question whether appellant, in fact, purchased Maxwell’s interest as alleged by him, for if he did, such fact would settle this litigation in his favor. The trial court found that no siich purchase took place, and after a careful review of the evidence we are fully agreed that such finding was correct. We deem it useless to narrate the testimony in this opinion bearing on this issue of fact. Suffice it to say that the testimony of appellant and his witnesses is of an unsatisfactory nature, while that of the respondents and their witnesses is clear, persuasive, and in full accord with every material, if not controlling, circumstantial evidence against appellant’s contention, and which he has not satisfactorily explained away.
The judgment will be modified by reducing the balance found due plaintiffs from defendant from $42.85 to $13.78, being one half of the-balance we find existing on such accounting, and as thus modified it will be affirmed, neither party to recover costs on the appeal.