Murphy v. Hinds

• Decision Date: 01 January 1870
• Parties: MICHAEL MURPHY v. HENRY HINDS.
• Court: Minnesota Supreme Court

15 Minn. 139

MICHAEL MURPHY

v. HENRY HINDS.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Scott county.

Henry Hinds, appellant, in person, cited:

J. L. McDonald, for respondent, cited:

BERRY, J.

This action is brought under section 1, c. 75, Gen. St., which provides that "an action may be brought by any person in possession, by himself or his tenant of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate, or interest." This section has on several occasions received a construction in this court, and it has been settled that the possession referred to is an actual possession. Steele v. Fish, 2 Minn. 153, (Gil. 129;) State v. Batchelder, 5 Minn. 239, (Gil. 178;) Meighen v. Strong, 6 Minn. 179, (Gil. 111;) Hamilton v. Batlin, 8 Minn. 404, (Gil. 359;) Wilder v. City of St. Paul, 12 Minn. 198, (Gil. 116.)

To maintain this action, then, the plaintiff must establish possession in fact. Upon the trial the plaintiff introduced the record of a duplicate certificate of entry of the land in question issued to one Hays, and the record of a warranty deed of the same, running from Hays and wife to himself and upon this evidence alone he relies as proof of his possession.

When no one is in actual possession of land, proof of a paper title may establish a constructive possession in the holder of such title, because under such a state of facts possession follows title. Van Rensselaer v. Radcliff, 10 Wend. 654; 2 Greenl. Ev. 614. But the constructive possession, from the very fact that it is constructive, is not actual possession. The plaintiff, then, having failed to make out a case, the defendant's motion for a non-suit was erroneously overruled.

The section of the statute cited has been amended (see chapter 72, Laws 1867) by appending to it these words: "And any person having or claiming title to vacant or unoccupied real estate may bring an action against any person claiming an estate or interest therein adverse to him, for the purpose of determining such adverse claim, and the rights of the parties respectively." The plaintiff insists that he has brought his action under the whole section as thus amended. But this is not so. There are two cases in which the section as amended provides that an action of this kind may be maintained — First, when the plaintiff is in actual possession; second, when the land is vacant or...