Bruns v. Schreiber

• Decision Date: 08 February 1892
• Citation: 48 Minn. 366
• Parties: HENRY A. BRUNS <I>vs.</I> SALLIE SCHREIBER <I>et al.</I>
• Court: Minnesota Supreme Court

Page 366

48 Minn. 366

HENRY A. BRUNS vs. SALLIE SCHREIBER et al.

Supreme Court of Minnesota.

Argued December 3, 1891.

Decided February 8, 1892.

Appeal by plaintiff, Henry A. Bruns, from an order of the district court of Clay county, Mills, J., made June 15, 1891, refusing a new trial.

Franklin J. Schreiber and his wife, Sallie, of Allentown, Pa., on September 15, 1881, conveyed to the plaintiff, Henry A. Bruns, all of section nine, (9,) and the east half of the northeast quarter of section five, (5,) in township one hundred and thirty-nine (139) north, of range forty-eight (48) west, in the city of Moorhead, in Clay county, Minn., containing seven hundred and sixteen (716) acres. The consideration paid was $45,000. The deed contained covenants by both the grantors that they were lawfully seised of the premises, and had good right to convey the same; that the lands were free from all incumbrances, except mortgages to the amount of $9,400, (which grantee assumed to pay;) that the grantee, his heirs and assigns, should quietly enjoy and possess the land; and that grantors would warrant and defend the title against all lawful claims except said mortgages. The Northern Pacific Railroad Company, under 13 U. S. St. ch. 217, § 2, then owned a perpetual right of way over and upon, and was in possession of, a strip of land one mile long and four hundred (400) feet wide, across said section nine, (9,) near, and parallel to, its north line, for its railroad, side tracks, and other structures and improvements, but no exception or reservation thereof was made in the deed.

This action was commenced October 24, 1887, against the grantors. The plaintiff by his complaint set forth all the covenants in the deed, and attached a copy, but the only breach he alleged was that defendants had failed to preserve and keep him in the quiet enjoyment of a strip of land one mile long and two hundred (200) feet wide, containing 24¼ acres, and claimed $3,010 damages. On May 18, 1889, the plaintiff amended his complaint, and alleged that the strip of land taken was four hundred (400) feet wide, and contained 50 acres, and claimed $11,000 damages. In this amended complaint he alleged, for breach of the covenants, that grantors had not, at the time of the execution of the deed, a good and sufficient title to, or good right to convey, this 50 acres; that the Northern Pacific Railroad Company had paramount title thereto, and by virtue thereof had taken and was in possession of it, and kept the plaintiff out; and that the land conveyed was not free from incumbrance, except said mortgages, but was incumbered by said railroad right of way.

The defendants, among other things, answered that the deed was made in part performance of a previous oral agreement of sale, in and by which plaintiff agreed to convey said right of way to the railroad company. The grantor, Franklin J. Schreiber, afterwards died intestate, and William R. Tanner and Sallie Schreiber were appointed administrators of his estate, and substituted as defendants in place of the intestate. The action was tried June 27, 1889, and on the trial the court received evidence of this parol agreement, and defendants had a verdict. On appeal to this court a new trial was granted. 43 Minn. 468.

Defendants then, on leave obtained, amended their answer, December 20, 1890, and averred, among other things, that the cause of action set forth in the complaint did not accrue within six years next prior to the commencement of the action. These issues were brought to trial January 8, 1891, before a struck jury. On motion of defendants, the trial court required plaintiff to elect upon which of the covenants in the deed he would rely. Plaintiff excepted to this ruling, and then elected to rely on the covenant against incumbrances. After the evidence was all in, defendants moved the court to instruct the jury to return a verdict for defendants, on the ground that the cause of action for breach of the covenant against incumbrances was first presented to the court by the amended complaint on May 18, 1889, more than six years after the breach of the covenant. The court granted the motion, plaintiff excepted, and a verdict was entered accordingly. Plaintiff moved for a new trial for errors of law occurring at the trial, and excepted to by him. It was refused, and he appealed.

R. R. Briggs, for appellant.

Burnham & Tillotson, for respondents.

DICKINSON, J.

The case as presented on a former appeal in this action is reported in 43 Minn. 468, (45 N. W. Rep. 861.) This appeal is upon the case made at the second trial of the cause. In May, 1889, the plaintiff introduced an amended complaint, upon which issue was joined by an amended answer, and upon which the cause was tried. At the close of the trial the court directed a verdict for the defendants, upon the ground that the cause of action presented in the amended complaint, and upon which by compulsion the plaintiff elected to stand, had become barred by the statute of limitations subsequent to the commencement of the action, and before the filing of the amended complaint. Two principal questions are presented: First, whether the court erred in requiring the plaintiff to elect; and, second, whether the cause of action set forth in the...