45 Minn. 231 | Minn. | 1891
It is conceded that plaintiff is the owner of the premises in controversy, unless his title has been divested by a sale thereof made Monday, May 20,1872, on an execution issued October
On July 31, 1866, however, the act of 1862 was repealed and the General Statutes of 1866 took effect, which provide that judgments “shall survive, and the lien thereof continue, for the period of ten years, and no longer,” (Gen. St. 1866, c. 66, § 254; Gen. St. 1878, c. 66,* § 277;) and that “the party in whose favor judgment is given, may, at any time within ten years after the entry thereof, proceed to enforce the same as prescribed by statute.” Gen. St. 1866, c. 66, § 262; Gen. St. 1878, c. 66, § 293. Without discussing the question whether the decision in Davidson v. Gaston, 16 Minn. 202, (230,) was correct, and whether it is consistent with that of Erickson v. Johnson, 22 Minn. 380, a careful comparison of the two makes it clear that.the rule established by these cases is that it is only judgments upon which executions had been issued and levied, or returned no property found, within five years from the entry thereof, under the act of 1862, that were excluded from the operations of section 254, c. 66, by section 4, c. 121, Gen. St. 1866; and that where, as in the present case, no execution had been thus issued and returned before the Statutes of 1866 took effect, the 10-year limitation contained in section 254 was made applicable by section 7, c. 121. It was also settled by Newell v. Dart, 28 Minn. 248, (9 N. W. Rep. 732,) that the sale on execution must be made within the life of the judgment.
The case is therefore reduced to the question of the proper method of computing time, in order to determine when the 10 years expired. Gen. St. 1866, c. 66, § 68, (Gen. St. 1878, c. 66, § 82,) provides that “the time within which an act is to be done, shall be computed by excluding the first day, and including the last. If -the last day is Sunday, it shall be excluded.” If this is applicable to the present case, this sale was in time, for, by excluding May 19, 1862, and also
It is also contended that the sale was void because not made before the return-day of the execution. This point is fully disposed of by the case of Barrett v. McKenzie, 24 Minn. 20. The sheriff’s re
In the certificate of sale, the sheriff states that he levied on and. sold the premises as the property of Spencer, the judgment debtor,, but in the return on the execution they are referred to as “the property of Catharine Ely.” This is evidently a clerical mistake in the-return, but it cannot affect the validity of the sale or the title of the-purchaser. As to the- purchaser, the highest evidence of what was-done under the execution is the certificate of sale executed to him, and he cannot be prejudiced by the fact that the sheriff thereafter made an erroneous return or no return at all. Millis v. Lombard, 32; Minn. 259, (20 N. W. Rep. 187.)
Upon the trial, the defendant did not introduce in evidence the judgment upon which the sale was made, relying evidently upon the-assumption that under Gen. St. 1878, c. 66, § 321, the recitals or statements in the certificate of sale were prima facie evidence of the-judgment. ■ In his brief, counsel merely suggests a doubt whether the recitals in the certificate are any evidence of the judgment. There-is nothing, however, to indicate that he relied on or intended to make-the point, and we must therefore decline to consider it. It is the-duty of an appellant to explicitly urge the points on which he intends-to rely in support of his appeal.
Order affirmed.