Eyre v. City of Faribault
| Decision Date | 25 April 1913 |
| Docket Number | Nos. 17,958-(61).,s. 17,958-(61). |
| Citation | 121 Minn. 233 |
| Court | Minnesota Supreme Court |
| Parties | DANIEL E. EYRE v. CITY OF FARIBAULT.<SMALL><SUP>1</SUP></SMALL> |
1901. The facts are stated in the opinion. The answer denied that the testator was the owner of the premises described in the complaint, and alleged a sale thereof by him to one Reardon, the death of Reardon, leaving as his sole heir his widow, Rose Ann Reardon, and a conveyance of the whole premises from said Rose Ann Reardon to defendant, which was the owner and in possession thereof until the condemnation proceedings mentioned in the opinion. The answer also set up title in defendant by adverse possession for 15 years prior to the year 1901, abandonment of the premises by the testator and his executor, the use and improvement of the premises by defendant, and laches on the part of plaintiff and his testator. The reply denied the new matter in the answer.
The case was tried before Childress, J., who made findings of fact that defendant, and its grantor and her husband, had been in the open, visible, hostile and continuous possession of the west half of the premises for more than 15 years prior to the condemnation proceedings in the year 1901, and ordered judgment in favor of plaintiff for $2,000, with interest from May 8, 1907, when the action was begun. From the judgment entered pursuant to the order for judgment, plaintiff and defendant appealed. Affirmed.
S. R. Child, Benjamin Drake and J. W. LeCrone, for plaintiff.
E. H. Gipson, City Attorney, for defendant.
Action for money had and received, to recover $4,000, with interest from May 28, 1901. The cause was tried to the court, without a jury. Findings were made awarding the plaintiff $2,000, with interest from May 8, 1907. Judgment was subsequently rendered thereon, and both parties appealed.
We will briefly recite the main facts necessary to an understanding of the controversy, leaving other facts specially material upon the several branches of the case, both admitted and disputed, to be stated when we come to consider the point to which they relate.
In 1856 one John Kennedy became the owner of lot 2, block 32, in the city of Faribault. This lot, prior to 1871, with the exception of a few feet of its west end, remained vacant and unoccupied. The lot was low, being largely in the river channel, and was subject to annual overflows. The soil was sandy, and the lot, in its natural state, was unsuitable either for habitation or cultivation. Its dimensions were, and still are, 66 by 165 feet, the longest dimension being from west to east.
In 1871 one Patrick Reardon and Rose Ann, his wife, became the owners of lots 9 and 10 in the same block. These lots were the same size as lot 2, lot 9 being immediately west thereof and lot 10 south of lot 9. In the same year, and during each year thereafter until 1878, Reardon and his wife had a garden on lot 9, which extended for a few feet over upon the west end of lot 2 the entire width thereof, and during the years mentioned they deposited and superintended the deposit of refuse and soil east of the garden, thus making the part of lot 2 so filled suitable for cultivation for some 80 feet towards the east. In 1878 the Reardons constructed a fence along the north line of lots 9 and 2 as far as the land was tillable and planted a garden upon all the land suitable therefor, and continued to maintain such fence and cultivation until 1888. In that year Patrick died, and his wife, succeeding to whatever interest he had in the lots mentioned, continued the cultivation referred to until 1890, but not thereafter. In 1893 she conveyed all of the property mentioned to the city, which took and held possession thereof until 1901. No one occupied lot 2 or exercised any acts of ownership thereover for 30 years prior to 1901, except the Reardons and the city. In April of that year a railway company instituted proceedings to condemn lot 2 for railway purposes, and thereafter such steps were taken that $4,000 was assessed as damages and paid into court, and the railway company took possession of the property. Subsequently, and on July 19, 1901, the city, upon an order of court, obtained such sum out of court, and has since retained the same. In 1882, John Kennedy died testate, his wife, Jennie, surviving him. The will contained no specific devise of lot 2, but Jennie McEwen was named as residuary legatee. In 1883 the plaintiff qualified as executor, and thereafter, in 1907, brought the present action in which the ultimate claim of both parties is to the ownership of the entire fund mentioned.
1. The city, as a preliminary claim, urges that this action should have been dismissed because the complaint contains no cause of action, inasmuch as it fails to allege what interest the plaintiff has in the fund; and also because it fails to set forth the amount of assets in Kennedy's estate, the proven debts against it, the deficit of assets, and the amount necessary to settle the unpaid claims; and further for the reason that all claims against the Kennedy estate were barred by limitation at the time of the bringing of this action; and likewise on the ground that the plaintiff is not the real party in interest.
In connection with these points, the record discloses that the executor of the Kennedy estate rendered a final account showing that he had paid the funeral charges and costs of administration, and that thereupon, on November 7, 1883, the probate court made its order reciting the ascertainment and adjustment of the debts of the deceased and the examination and passing of the executor's account, from which it appeared that he had, for distribution, $1,817.45, the same being insufficient fully to pay the ascertained debts. It also appears that the court directed pro rata distribution which left a deficit of $771.39. Upon this showing, and in connection with the city's point that this action should be dismissed, it is argued that in no event could the plaintiff be entitled to any more of the fund in controversy than enough to pay such deficit.
We cannot sustain these contentions. As suggested by the Chief Justice upon the oral argument, the objections urged, save only those to the jurisdiction of the court and the sufficiency of the facts to constitute a cause of action, were waived under R. L. 1905, § 4129, the same appearing upon the face of the complaint and not having been raised by demurrer or answer. We think, also, that the plaintiff's right of action is unquestionable. As executor he had the absolute right to the possession of the land, without regard to the sufficiency of the personal assets to pay debts (R. L. 1905, § 3705; Miller v. Hoberg, 22 Minn. 249; 1 Dunnell, Minn. Dig. § 2722), and such right continues until the estate is finally settled (In re Scheffer's Estate, 58 Minn. 29, 59 N. W. 956). Since, therefore, the plaintiff has never been discharged as executor, and as the fund involved stands in the place of the land (Smith v. City of St. Paul, 65 Minn. 295, 297, 68 N. W. 32), he likewise has the right, as executor, to reduce such fund to possession, and this without regard to the financial status of the estate.
2. The city claims that it became the owner of the whole of lot 2 by adverse possession, while the plaintiff contends that no such title was established either to the lot in its entirety or to any part thereof. The court sustained the city's claim as to the west half of the lot, denying it as to the other half, and both parties assign error upon such holding. It would be idle to recite the voluminous testimony on the question thus raised. It has been considered, and when the nature and situation of the lot and the uses to which it was adaptable during the period of its occupancy (see Murphy v. Doyle, 37 Minn. 113, 33 N. W. 220; Costello v. Edson, 44 Minn. 135, 46 N. W. 299) are kept in mind, we find no difficulty in reaching the conclusion that the finding of the trial court referred to must be sustained as against the attack made thereupon by both of the parties to this action. In reaching this conclusion we have not overlooked the plaintiff's contention as to the quantum and character of proof necessary to establish title by adverse possession, and in deference thereto we again reiterate that Oertel v. Pierce, 116 Minn. 266, 133 N. W. 797. Ann. Cas. 1913A, 854. See also Holien v. Slee, 120 Minn. 261, 265, 139 N. W. 493, 494. The constituents of title by adverse possession have been so frequently stated in our reports that repetition thereof here would be supererogation, and it is sufficient to say, applying the rule of appellate procedure announced above, that upon each and all of them the findings of the trial court must be sustained.
3. The city contends that the plaintiff's claim is barred under the doctrine of res adjudicata, insisting that its title to lot 2 was conclusively adjudicated in the condemnation proceedings, and...
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