majority">Dickinson, J.

This action relates to the north half of lots 1, 2, 3, and 4, in block 31, of the township of Little Falls, in Morrison county, excepting the south seven feet of the north half of lot 4. Prior to 1887, one Lambert owned the property, as is alleged in the complaint. In April, 1883, a judgment in favor of Russell & Co. *312against Lambert was docketed. In October, 18S3, one Geissell recovered and docketed a judgment against Lambert, and this judgment seems to have been subsequently assigned to the defendant Brown. A third judgment against Lambert was recovered by the plaintiff, and was docketed in 1885. June 15, 1889, under execution issued on the senior judgment, (of Russell & Co.,) the north half of lot 4 was sold, one Trebby being the purchaser. The plaintiff, by virtue of his being a judgment creditor, under the third judgment, duly redeemed from that sale June 20, 1890, as is alleged in the complaint and found by the court. No other redemption was made or attempted. The time for redemption having expired, the defendant Brown was about to enforce the second (G-eissell) judgment, by sale of the premises under execution issued on such judgment, when this action was instituted to restrain that proceeding, and to have it adjudged that the second judgment was not a lien upon the premises. Upon the findings of fact in the District Court, its conclusion was that the plaintiff was not entitled to any relief. It is admitted that the plaintiff is the owner of all the property, subject to any liens which may rest thereon by virtue of the judgments against Lambert.

We will first consider the case merely as respects lot 4, which was sold under the senior judgment. The court found that “all the allegations of the complaint are true as therein set forth,” except that (as the court found, among other things) the property was not the homestead of Lambert. The respondent must rest upon the findings of the court as to the facts, and, it being found that the plaintiff duly redeemed from the sale, it must follow, as a legal conclusion, (no other redemption having been made or attempted,) that he thereby acquired the title to that part of lot 4 here in question, and the lien of and right tc enforce the second judgment against this land was extinguished. Lowry v. Akers, 50 Minn. 508, (52 N. W. Rep. 922.)

The respondent contends that the alleged redemption on the 20th of June was one day before the plaintiff had a right to redeem, and hence that it was void. Granting that it was premature, it would not necessarily follow that it was ineffectual, and the finding of the court that the plaintiff did duly redeem must be taken as conclusive. The findings embrace the fact that the defendant *313Brown, tbe bolder of tbe second judgment, did not redeem or attempt to do so; bence it did not affect or prejudice ber if tbe plaintiff’s redemption was premature. If tbe defendant Brown did not cboose to exercise ber right of redemption, sbe cannot complain that tbe purchaser under tbe execution sale consented to a redemption by tbe plaintiff one day before tbe time prescribed by statute therefor. There is no merit in tbe point that while the consideration paid to-redeem was paid directly to Trebby, tbe purchaser at tbe execution sale, tbe certificate of redemption was made, not by Trebby, but by tbe sheriff; bence we conclude that tbe defendant Brown bad no. right to enforce ber judgment by a sale of lot 4 on execution, and tbe court erred in not granting relief to tbe plaintiff.

We will now consider the case as respects tbe north half of the other lots, 1, 2, and 3. Tbe complaint alleges that Lambert owned this real estate when tbe defendant’s judgment was recovered and docketed, and that it was tbe “exempt homestead” of Lambert,, until be sold and conveyed it. Tbe answer admitted that Lambert-bad owned tbe north half of lots 1, 2, and 4; that be bad resided on lot 1; and that he bad claimed to own also tbe north half of lot 3, but bad no valid claim of title thereto. Lot 3 separated lot 4 from tbe other two lots. At tbe commencement of tbe trial it was admitted that Lambert bad owned tbe north half of lots 1, 2, and 4, and’ claimed to own tbe north half of lot 3; that be conveyed to one Boyce, who conveyed to tbe plaintiff; that Lambert resided on tbe north half of lots 1 and 2 from September, 1878, until August 25, 1887; and that, since tbe occupancy and deed from Lambert, the-“original title” to tbe north half of lot 3 bad been purchased by tbe plaintiff. Construing these admissions in connection with the-issues made by the pleadings, and considering that tbe purpose of tbe admissions was to lay tbe facts of tbe case before tbe court,, and avoid tbe necessity for proof upon tbe controverted points, so. far as they were covered by tbe admissions, we regard tbe admissions as embracing, among other things, tbe agreement of tbe parties that Lambert did not own lot 3, and that be resided on lots 1 and 2 for some nine years prior to and until bis conveyance through which tbe plaintiff acquired title. This showed, at least prima facie,. that the north half of lots 1 and 2 constituted tbe homestead of Lambert, and, this being wholly unopposed and unqualified, we *314think that the court should have so found. It should be added, however, in justice to the learned judge who tried the case, that it seems to have been so presented that it is not surprising that the findings are found to have been erroneous. If lots 1 and 2 constituted the homestead of the judgment debtor, they were exempt from the lien of the judgment sought to be enforced by the defendant, •and never became subject to sale under the execution. As lot 3 was not owned by Lambert, his homestead was limited to the north half of lots 1 and 2, which, as we understand, did not exceed the quantity of land which he was entitled to hold as a homestead.

(Opinion published 56 N. W. Rep. 34.)

Order reversed.

Citation profile

Relationships

How this case has been treated — in progress