Meighen v. Strong

• Decision Date: 01 January 1861
• Citation: 6 Minn. 111
• Parties: FELIX MEIGHEN vs. WILLIAM H. STRONG.
• Court: Minnesota Supreme Court

6 Minn. 111

FELIX MEIGHEN vs. WILLIAM H. STRONG.

Supreme Court of Minnesota.

Appeal from order of the district court, Fillmore County.

Points and authorities for appellants:

This action was brought under sec. 1 of ch. 64, of the Pub. Stat., for the purpose of having determined an adverse claim of defendants to certain real property. The plaintiff recovers, if at all, upon his possession "by himself or his

tenant," and having failed to prove such possession, the defendants were entitled to the nonsuit or dismissal, as moved for on the trial. It was error in the court below to refuse it. The deed from Hayles to Brockett, having been executed in the presence of but one witness, conveyed nothing, and the record thereof ought not to have been admitted in evidence. Pub. Stat., ch. 35, §§ 8 and 14-22 inc.; Act of July 26, 1858, § 1; Pub. Stat., 403, § 52; Act of March 4, 1854, § 2; id, 402, § 41; Good's Lesee v. Zercher, 12 Ohio, 364; Meddock v. Williams, id., 377; Silliman v. Cummins, 13 Ohio, 116.

Points and authorities for respondent: —

1. Actual possession has been proved.

2. No adverse possession being proved, the constructive possession resulting from a claim of legal title under a recorded deed is sufficient to support this action. Royall v. Lisle, 15 Geo., 545.

3. Possession of a particular parcel of land under colorable title is possession of the whole embraced in that title. Hibbard v. Foster, 24 Vt., 542; Thomas v. Kelly, 13 Ired., 269; Swift v. Gage, 26 Vt., 224; Chiles v. Conley, 9 Dana, 385; Sawyer v. Newland, 9 Vt., 383.

4. Actual residence and cultivation are not necessary to maintain possession of timber land. Stephens v. Leach, 19 Penn., 262; Ellicott v. Pearl, 1 McLean, 206; Tredwell v. Reddick, 1 Ired., 56; Spear v. Ralph, 14 Vt., 400.

5. The deed objected to, was made legal and valid by act of the legislature, passed July 26, 1858. Pub. Stat, 403; Watson v. Mercer, 8 Pet., 88; McMasters v. Commonwealth, 3 Watts, 294, S. P.; Bond v Appleton, 8 Mass., 472.

Norton & Mitchell, R. Wells, and N. P. Colburn, for appellants.

H. C. Butler, for respondent.

EMMETT, C. J.

This action was brought under that provision of our statute which authorizes any person in possession of real property by himself or tenant, to commence an action against any one claiming an adverse interest or estate therein, for the purpose of having such adverse estate or interest determined. Comp. Stat., 595, § 1. The evident design of the legislature in passing this act, was to give to parties in possession of real property, the same facilities for testing the merits of adverse claims of title, that are always at hand for those who are excluded from the possession, but claim an estate therein adverse to that of the occupant. The latter may, at any time, before they are barred by the statute of limitations, bring an action against the occupant to recover the possession of which they are deprived; while the occupant, being in the enjoyment of all his rights, has, without the aid of the statute, no right of action until he has in some manner been interfered with. He would therefore have to await the leisure of those claiming adversely, and they may never urge their claims until the evidences by which the title of the occupant is established, or their own repelled, may become lost or obscured. To avoid such a contingency the statute authorizes the occupant to institute proceedings against any one claiming an adverse interest or estate, by which the party so claiming is forced at once, either to establish his claim, or abandon it altogether. Such being the object and design of the law under consideration, the importance to the plaintiff of showing himself in possession of the premises is apparent; for on that depends his right to bring the action under the statute.

In the present case, the plaintiff made the necessary allegation as to his possession, and the defendants by their answer put his possession directly in issue. On the trial of this issue, after the plaintiff had submitted all his testimony touching his possession, the defendants moved the court to dismiss the action, on the ground that the plaintiff had failed to show himself in possession of the property in dispute. The court refused to dismiss, and the refusal is here urged as ground for reversing the judgment.

The evidence on this point, which the record discloses is not very satisfactory, but still, if the jury were to pass upon that issue, there was enough perhaps to justify the court in submitting the evidence to them, with proper instructions as to its legal effect. There is, however, another point made in this case, wherein we think the decision was clearly erroneous. The court admitted in evidence under the objection of the defendants, the record of a deed from Hayles to Brockett, which appears to have been executed in the presence of one witness only. In the case of Parret v. Shaubhut, 5 Minn.. [323], this court decided that the statute which requires that a conveyance of lands shall be executed in the presence of two witnesses, who shall subscribe their names thereto as such, is imperative and must be complied with to give the instrument any validity as a conveyance. Every conveyance of lands must be in writing, under seal, signed by the grantor, and executed in the presence of two witnesses, who shall also sign the same as such. Each of these requirements is essential to the validity of the conveyance, and...