Perkins v. Morse
| Decision Date | 11 November 1882 |
| Citation | 13 N.W. 911,30 Minn. 11 |
| Parties | Edward R. Perkins v. Clara B. Morse and another |
| Court | Minnesota Supreme Court |
Action to determine adverse claims to real property, brought in the district court for Hennepin county. A motion by defendant Clara B. Morse for judgment on the pleadings having been denied by Vanderburgh, J., the action was tried before Lochren, J., without a jury, and judgment ordered and entered for plaintiff, and the defendants appealed.
As appears from the settled case, the only evidence introduced to show the execution, delivery, and contents of the deed from Charles Galpin to George Galpin, mentioned in the opinion, consisted (1) of a deed from George Galpin of the same land to defendants' grantor, Charles Galpin being a subscribing witness and the notary who took the acknowledgment; and (2) the deposition of one Snell, who had known both of the Galpins and had been familiar with their business transactions, to the effect that some kind of conveyance had been made by Charles Galpin to George Galpin. But no evidence was introduced showing the loss or fairly raising the presumption of the loss of such deed, (if it ever existed.) The court found that defendants had not used sufficient diligence to warrant the reception of secondary evidence of the contents of the deed. The other facts are stated in the opinion.
Judgment affirmed.
Savage & Woodman, for appellants.
1. The admissions in the second counterclaim do not qualify the issues raised by the first counterclaim. Bass v Upton, 1 Minn. 292, (408;) Gertler v. Linscott, 26 Minn. 82; Swift v. Kingsley, 24 Barb. 541; Stebbens v. Lenfesty, 14 Ind. 4; Sabin v Austin, 19 Wis. 421; Nevada, etc., Canal Co. v. Kidd, 37 Cal. 282.
2. Defendant Clara B. Morse was entitled to recover on her possessory title. Actual possession is prima facie evidence of ownership. Steele v. Fish, 2 Minn. 129, (153;) Booth v. Sherwood, 12 Minn. 310, (426;) Rau v Minn. Val. R. Co., 13 Minn. 407, (442;) Burt v. Panjaud, 99 U.S. 180; Brown v. Bowen, 30 N.Y. 519; Bates v. Campbell, 25 Wis. 613; Welch v. Jenks, 12 N.W. 727. The former possession of George Galpin, under whom defendant claims, prevails over plaintiff's possession. 2 Greenleaf on Ev. § 311; Sherin v. Larson, 28 Minn. 523; Dale v. Faivre, 43 Mo. 556; Keane v. Cannoran, 21 Cal. 291; Wilder v. City of St. Paul, 12 Minn. 116, (192;) Ford v. Belmont, 69 N.Y. 567; Hoey v. Furman, 1 Pa. St. 295; Bequette v. Caulfield, 4 Cal. 278; Morton v. Folger, 15 Cal. 275; Newnam v. City of Cincinnati, 18 Ohio 323; Duffey v. Rafferty, 15 Kan. 9; Proprietors of Enfield v. Permit, 8 N.H. 512; Tyler on Ejectment, 72.
Boardman & Ferguson, for respondent.
This is an action under the statute to determine the adverse claims of the defendants to land of which plaintiff alleges that he is owner in possession. Defendant H. R. Morse, separately answering, -- first, denies each and every allegation of the complaint; and, secondly, disclaims any adverse claim to the land. So far as he is concerned, the disclaimer is an end of the controversy. It is a solemn admission by which the plaintiff gains all that he sought against the disclaiming party. It not only dispenses with proof upon plaintiff's part, but it shows that the disclaiming party has no interest in the subject of litigation, and therefore renders any issues raised by his denials utterly immaterial. It entitles the plaintiff to a judgment upon the merits, determining that such party has no estate or interest in the premises to which the action relates. This disposes of the appeal of H. R. Morse.
The other defendant, Clara B. Morse, -- First, denies every allegation of the complaint except that of plaintiff's possession, and alleges that she is the lawful owner of the premises in dispute. Secondly, as a defence and counterclaim, she alleges that she is the owner in fee-simple and entitled to the immediate possession of the premises, and that the plaintiff wrongfully and unlawfully withholds such possession from her. Thirdly, as a defence and second counterclaim, she alleges that she is owner in fee-simple of said premises; that her title is derived from Charles Galpin, a former owner thereof, who conveyed the same by warranty deed to George Galpin; that George Galpin, by deed duly recorded, conveyed the premises to Murray, who, by like deed duly recorded, conveyed the same to her, the defendant Clara. She further alleges that, after the conveyance from Charles to George Galpin, (which was never recorded,) Charles, by will duly probated, (a copy of the will and probate being duly recorded,) devised to his wife Semantha "all the property of which he was possessed;" that subsequently Semantha, by deed duly recorded, quitclaimed the premises in dispute to Sheldon, who afterwards quitclaimed the same to the plaintiff; that neither Sheldon nor plaintiff was a purchaser in good faith or for a valuable consideration, and that each had notice and knowledge of the conveyance from Charles to George Galpin, from George to Murray, and from Murray to defendant Clara. She further alleges that the quitclaim deeds mentioned are a cloud upon her title. Upon the allegations of her answer she prays for various appropriate affirmative relief.
The plaintiff's reply denies defendant Clara's ownership and right to the possession of the premises, also all knowledge or information sufficient to form a belief as to whether Charles Galpin "ever executed, acknowledged, or delivered any deed conveying the premises, or any part thereof, to the Galpin...
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