Johnson v. Peterson

• Decision Date: 20 November 1903
• Docket Number: 13,598 - (36)
• Citation: 97 N.W. 384,90 Minn. 503
• Parties: JOHANNA C. JOHNSON v. GUSTAF PETERSON
• Court: Minnesota Supreme Court

97 N.W. 384

90 Minn. 503

JOHANNA C. JOHNSON v. GUSTAF PETERSON

Nos. 13,598 - (36)

Supreme Court of Minnesota

November 20, 1903

Action in the district court for Chisago county to determine the adverse claim of defendant to land in possession of plaintiff. The case was tried before Crosby, J., who found in favor of plaintiff. From a judgment entered pursuant to the findings defendant appealed. Reversed, and new trial ordered.

SYLLABUS

Adverse Claims.

In an action to determine an adverse claim to real property plaintiff being in possession, the answer contained a counterclaim in ejectment. Held, that the procedure was not changed by reason of this counterclaim, and that the defendant was not entitled to a jury trial.

Curative Acts.

Held that a defective foreclosure of a mortgage under the power therein contained, made in the year 1874, was validated by the curative acts of 1883 and 1889, now G.S. 1894, §§ 6054, 6055.

Adverse Possession.

Possession of a vendee under an executory contract for the purchase of land is not adverse to the vendor so long as the purchase money is not paid, or at least not before the vendee is entitled to demand a deed. A privity exists between the vendor and the vendee, which precludes the idea that pending the completion of the contract by a payment of the money the possession of the vendee can become adverse to the legal title held by the vendor.

Findings of Court.

Held, that the conclusion of law herein that plaintiff was the owner of the land, and entitled to a judgment declaring the defendant's asserted claim null and void, and that he had no title, estate or interest in or to the land, was unsupported by the findings of fact, wherein, in effect, it was found that the plaintiff and her predecessor in interest had been and were in possession and occupancy of the property under a claim of ownership under a contract of sale made in the year 1876 with defendant's grantor.

P. H. Stolberg and Alfred P. Stolberg, for appellant.

P. M. Qvist and S & O. Kipp, for respondent.

OPINION

COLLINS, J. ^[2]

This action was brought to determine an adverse claim made by defendant to eighty acres of land in Chisago county, in the possession of plaintiff. By an amendment to the original complaint, the latter's right to the land and the extent of her possession were set forth in detail, but the nature of the action was not thereby changed. It was still an action to determine an adverse claim. In his answer the defendant denied the alleged ownership of the plaintiff; admitted, however, that she was in possession; and then alleged that this possession was wrongful, unlawful, and without any right. Defendant further alleged that he was the owner in fee simple, setting out that his title was derived from the United States government through certain conveyances. He demanded that he be declared the owner in fee simple, and entitled to possession. In her reply, plaintiff alleged title by adverse possession, under the statute. When the case came on for trial, defendant moved that a jury be impanelled to try the issues. The motion was denied, and the case was thereupon tried by the court without a jury.

Upon hearing the evidence the court found that a patent was issued by the United States, in which one Hyde was patentee, bearing date June 1, 1866; that in 1867, Hyde, by warranty deed, conveyed the land to one Strand; that on April 30, 1871, Strand duly executed and delivered a mortgage upon the land to one Taylor, all of which instruments were duly recorded; that Taylor subsequently attempted to foreclose the mortgage by advertisement; that in the published notice of such foreclosure it was stated that a sale would take place on June 3, 1874; that on the day last mentioned the sale was adjourned by the sheriff to June 17; that there was a total failure to show by printer's affidavit or otherwise that any notice of such adjournment was published; that at the foreclosure sale the premises were bid in by the mortgagee, to whom was issued a sheriff's certificate of sale, fair and regular on its face, and there was no redemption. The court also found that in the fall of 1876 Taylor verbally contracted to sell this land to one Alfred Johnson for the sum of $400; that, of this agreed purchase price, Johnson paid $100 in cash, and agreed to pay the balance in three equal annual installments, of $100 each; that he took possession of the property, and built a house thereon, and continued to occupy the same as his home up to March 31, 1892, when he died intestate. And also found the extent of improvements made by Johnson, and, among other things, that in 1884 he inclosed all of the land with a fence; that the plaintiff is the mother of said Johnson, and his only heir at law; that she was residing with him upon the land at the time of his death, and has ever since lived there, and has been in possession of the entire tract. The court also found that Johnson never in fact paid any part of the $300, the deferred payment on the purchase price; that the possession and occupancy of Johnson in his lifetime, and his mother, this plaintiff, since that event, have been under a claim of ownership under the contract of sale between Taylor and Johnson made in 1876, as aforesaid. Upon these findings of fact, the conclusions of law were that plaintiff was the owner in fee simple, entitled to possession of the premises, and entitled to a judgment against defendant that his adverse claim is null and void, and that he has no title, estate, or interest in or to the land.

This case is presented, on an appeal from the judgment, upon the pleadings, the order of the court denying defendant's motion for a jury trial, the findings of fact, and the conclusions of law before mentioned. The findings are not questioned, and therefore must be accepted as fully warranted by the testimony.

1. The character of this action has been heretofore stated. It was brought to determine an adverse claim to real property; the plaintiff being in possession, and the answer setting up a counterclaim in ejectment. Except as otherwise provided by statute, all the ordinary rules governing suits in equity to quiet title apply to this action, and it was triable by the court and not by a...