Abrahamson v. Sundman, 26440.

• Decision Date: 02 March 1928
• Docket Number: No. 26440.,26440.
• Citation: 218 N.W. 246,174 Minn. 22
• Parties: ABRAHAMSON et al. v. SUNDMAN.
• Court: Minnesota Supreme Court

218 N.W. 246

174 Minn. 22

ABRAHAMSON et al. v. SUNDMAN.

No. 26440.

Supreme Court of Minnesota.

March 2, 1928.

Appeal from District Court, Hennepin County; F. E. Reed, Judge.

Action by Edward Douglas Abrahamson and others against Hazel Sundman. From a judgment decreeing defendant to be the owner in fee of a certain lot, plaintiffs appeal. Affirmed.

W. T. Coe and Henry H. Bank, both of Minneapolis, for appellants.

Norton & Norton, of Minneapolis, for respondent.

HOLT, J.

Plaintiffs appeal from a judgment decreeing defendant to be the owner in fee of a certain lot in Hennepin county.

The title to the lot was registered under the Torrens Act, and a certificate of title issued to Tuxedo Park Company, a Minnesota corporation, January 16, 1914. Several years later, but prior to August, 1923, Tuxedo Park Company conveyed the lot by warranty deed to Swan J. Johnson, who erected a house thereon, and then conveyed to plaintiffs, who went into possession August 31, 1923, and have ever since remained in possession; but neither of said deeds was ever filed in the registrar's office, and no memorial in respect to said lot was ever noted on the registration certificate until September 14, 1923, when the Glass-Melone Lumber Company filed a mechanic's lien statement for lumber furnished Swan J. Johnson for building the house upon the lot. On June 1, 1924, notice of lis pendens was duly filed with the registrar to foreclose said lien, in which action Swan J. Johnson and wife and Tuxedo Park Company were made defendants, judgment was duly entered, and the lot sold, the sale confirmed by the court, and, after the time for redemption expired, there being no redemption, on application to the court the certificate of the Tuxedo Park Company to the lot was canceled February 10, 1926, and a new certificate of title duly issued to the Glass-Melone Lumber Company, and in turn canceled, that company having conveyed to defendant, to whom a new certificate of title was issued. Although plaintiffs were in possession of the lot, they were not made parties to the lien foreclosure proceeding, nor served with notice of the application made to the court, after the expiration of the time for redemption, to cancel the registered title held by the Tuxedo Park Company and for the issue of a new certificate in lieu thereof to defendant, the vendee of the Glass-Melone Lumber Company.

We have then this situation: Since 1914, Tuxedo Park Company has been the owner in fee of the lot by a title established under the Torrens Act. In the registrar's records that title has now passed to defendant. No flaw is found in the proceedings under the Torrens Act by which the Glass-Melone Lumber Company established and enforced its mechanic's lien, and which eventually resulted in the extinguishment of the record ownership of Tuxedo Park Company and the succession thereto of defendant, unless the lien claimant was required to take notice of plaintiffs' possession and make them parties to the lien foreclosure. A title is created by the decree and certificate of registration. Henry v. White, 123 Minn. 182, 143 N. W. 324, L. R. A. 1916D, 4, and cases therein cited. There is here no question but that, when the title to the lot was originally registered under the Torrens Act, all parties were served so that the decree entered created an indefeasible title in fee in Tuxedo Park Company. When the Glass-Melone Lumber Company filed and foreclosed its mechanic's lien, could it safely rely on the fact that no memorial or notation had been entered on the registration certificate, nor any document filed with the registrar affecting the lot? In other words, was it necessary to ascertain who was in possession and make him a party to the foreclosure? No one acquires rights in registered land by going into possession. The law provides:

"No title to registered land in derogation of that of the registered owner shall be acquired by prescription or by adverse possession." Section 8248, G. S. 1923.

Section 8271 provides:

"Every person receiving a certificate of title pursuant to a decree of registration, and every subsequent purchaser of registered land who receives a certificate of title in good faith and for a valuable consideration, shall hold the same free from all incumbrances, and adverse claims, excepting only such estates, mortgages, liens, charges and interests as may be noted in the last certificate * * * and also excepting any of the following rights or incumbrances * * * against the same, if any, namely: * * * (3). Any lease for a period not exceeding three years when there is actual occupation of the premises thereunder. * * *"

Hence the only right or title that the occupation and possession by one other than the registered owner indicates or gives notice of is a leasehold interest of not more than three years' duration. No contract or deed concerning registered land can take effect as a conveyance, or bind or affect the land except as authority to registrar to make registration. "The act of registration shall be the operative act to convey or affect the land." Section 8293. A Torrens title being created by...