Seymour, Sabin & Co. v. Carli

• Decision Date: 31 July 1883
• Citation: Seymour, Sabin & Co. v. Carli, 31 Minn. 81, 16 N.W. 495 (Minn. 1883)
• Parties: Seymour, Sabin & Company v. Christopher Carli
• Court: Minnesota Supreme Court

16 N.W. 495

31 Minn. 81

Seymour, Sabin & Company v. Christopher Carli

Supreme Court of Minnesota

July 31, 1883

Ejectment.Appeal by plaintiff(a corporation) from an order of the district court for Washington county, Crosby, J presiding, refusing a new trial.The action was tried by Hon Charles E. Flandrau as referee, on stipulated facts, which are stated in the opinion, and judgment was ordered for defendant.

Order affirmed.

Marsh & Searles, for appellant.

Plaintiff has never been disseized.In order to work a disseizin under our statute of limitations, the possession of defendant at the time it was taken must have been adverse, under claim of title, and with an intention to dispute the title of plaintiff.The only states having a statute similar to ours are Maine, Massachusetts, New York, Illinois, Missouri California, Iowa, Wisconsin, Oregon, South Carolina and Florida, and the decisions of the courts of these states support the appellant's position.Figg v. Mayo,39 Cal. 262;McNamara v. Seaton,82 Ill. 498;Skinner v. Crawford,54 Iowa 119;Grube v. Wells,34 Iowa 148;Dow v. McKenney,64 Me. 138;Ross v. Gould, 5 Greenl.(Me.) 204;Lincoln v. Edgecomb,31 Me. 345;Brown v. Gay, 3 Greenl.(Me.) 126;Cleaveland v. Flagg,4 Cush. 76;Thomas v. Babb,45 Mo. 384;St. Louis University v. McCune,28 Mo. 481;Houx v. Batteen,68 Mo. 84;Brandt v. Ogden,1 John. 156;Jackson v. Sharpe,9 John. 163;Humbert v. Trinity Church,24 Wend. 587;Robinson v. Keine, 70 N.Y. 147.

The defendant having taken possession of plaintiff's land by mistake, and without any claim to title, such possession can only operate as a disseizin from the time that the error is discovered.Phelps v. Henry,15 Ark. 297;Howard v. Reedy,29 Ga. 152;Smith v. Morrow, 5 Litt.(Ky.) 210; Brown v. Gay, 3 Greenl.(Me.) 126; Ross v. Gould, 5 Greenl.(Me.) 204;Bradstreet v. Huntington, 5 Pet. 402, 440.

J. N. & I. W. Castle, for respondent, cited French v. Pearce,8 Conn. 439;McKinney v. Kenny, 1 A. K. Marsh, (Ky.) 460;Smith v. Morrow, 5 Litt.(Ky.) 210;Hunter v. Chrisman, 6 B. Mon.(Ky.) 463;In re Abbott,55 Me. 580;Hitchings v. Morrison,72 Me. 331;Ricker v. Hibbard,73 Me. 300;Schnider v. Batsch,90 Ill. 577;Melvin v. Proprietors, etc.,5 Met. 15;Poignard v. Smith,6 Pick. 172;Walbrunn v. Ballen,68 Mo. 164;Enfield v. Day,7 N.H. 457;Hale v. Glidden,10 N.H. 397;Overing v. Russell,32 Barb. 263;Crary v. Goodman,22 N.Y. 170;Washburn v. Cutter,17 Minn. 335, (361;)Bradstreet v. Huntington,5 Pet. 402;Elmendorf v. Taylor,10 Wheat. 152; Coke on Littleton, 153, 279.

OPINION

Vanderburgh, J.

From the facts found and admitted in this case, it appears that the defendant and his grantors have been in the possession of lot 1, block 19, in the city of Stillwater, for upwards of 20 years; and that plaintiffs own, and they and their grantors have been in the possession of, the adjoining lot, 2, in the same block, except the portion thereof in dispute, for more than 20 years; and "that more than 20 years before the commencement of this action the grantors of the defendant erected a dwelling-house, partly on lot 1 and partly on lot 2," all of said dwelling-house being on said lot 1, except that the rear or west end of the same projected over and into lot 2 for the distance of three 16-100 feet, and the front or east end of the same for the distance of two 4-100 feet;" that ever since its erection, the defendant and his grantors have been in actual possession of the house and land occupied by it.It was erected by defendant's grantor under a claim of title to lot 1 only, and was extended over the line of lot 2 under a mistake as to the location of the boundary line, and has always been occupied under a claim of title to lot 1.Neither plaintiffs nor their grantors have been in possession of that portion of lot 2 upon which the dwelling-house stands for upwards of 20 years.

Upon these facts the referee found that the defendant was entitled to judgment.

The sole question involved is the application of the statute in reference to the time of bringing actions to recover real property, which provides that no such action shall be brought unless the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within 20 years before the commencement of the action.(Gen. St. 1878, c. 66, § 4.)

Plaintiffs predicate their right to recover upon the ground that defendant's possession is without color or claim of title to the locus in quo; that a distinction is implied between the terms "seized" and "possessed," used in the statute, and that accordingly the possession of the defendant, under the circumstances appearing in this case, did not work a disseizin of plaintiffs or their grantor; in other words, that while defendant has a naked possession of a part of lot 2 under a claim of title to lot 1 only, the plaintiffs still remained seized.This question must be determined by the legal character of defendant's possession of that part of lot 2 occupied by him.The term "seized" in the statute is not used in contradistinction to "possessed," so as to admit of an interpretation that the legal title or ownership only would be sufficient to prevent the statute running as against the true owner, though a stranger be in the actual occupancy, pedis possessione, of the land in dispute.The title of the owner of a freehold estate is described by the terms "seizin," or "seizin in fee;" yet, in a proper legal sense, the holder of the legal title is not seized until he is fully invested with the possession, actual or constructive.When there is no adverse possession, the title draws to it the possession.There can be but one actual seizin, and this necessarily includes possession; and hence an actual possession in hostility to the true owner works a disseizin, and, if the disseizor is suffered to remain continuously in possession for the statutory period, the remedy of the former is extinguished.Melvin v. Proprietors, etc., 5 Met. 15, 33;Towle v. Ayer, 8 N.H. 57;Sedg. & W. on Title to Land, §§ 728, 737;Wood on Limitations, § 256.

In the case at bar, the defendant certainly has no color of title to lot 2, yet he or his grantors entered upon the particular portion thereof under a claim, though mistaken, that he was entitled to it as being a part of lot 1, and, in so far as their possession has been an actual occupancy, it should be deemed exclusive, adverse, and hostile to the plaintiffs.The contention of the plaintiffs is sustained by the decisions of the courts of some of the states, on the theory that the possession beyond the true boundary line in such cases is through mistake, and accidental, rather than adverse; that the claim of the intruder must be as broad as his possession and that, as his claim is limited to the lot or...