Steele v. Fish

• Decision Date: 01 January 1858
• Citation: 2 Minn. 153
• Parties: FRANKLIN STEELE et al. vs. MOSES FISH.
• Court: Minnesota Supreme Court

Page 153

2 Minn. 153

FRANKLIN STEELE et al.vs.

MOSES FISH.

Supreme Court of Minnesota.

Appeal from judgment of district court, Hennepin county.

Parson & Morgan, for appellants.

Cornell & Vanderburg, for respondents.

FLANDRAU, J.

This action is commenced under § 1 of ch. 74, of the Rev. Stat. 388, which is as follows: Sec. 1. "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." Sec. 2. "If the defendant in such action disclaim, in his answer, any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff cannot recover costs."

The complaint declares that the plaintiff is in the lawful and actual possession of the premises described, and is lawfully entitled thereto, and that the defendants claim some estate or interest in said premises adverse to the plaintiff. The complaint asks the court to adjudge such adverse claim of the defendants to be void, &c. To this complaint a demurrer is filed, which insists that the complaint is insufficient by reason of its alleging conclusions of law, and not facts, and proceeds upon the supposition that the plaintiff must set out his title, or plead all the fact upon which his right of possession is founded. The argument of the defendant's counsel assumes that the allegations in the complaint are conclusions of law, and not facts, and discusses the question of the sufficiency of the pleadings upon that basis alone. This is erroneous in point of fact; the allegations in the complaint are: "That this plaintiff has, since the date aforesaid, been and continued in the constant, actual and lawful possession and occupancy thereof, and is now in the actual possession thereof, and that the plaintiff is lawfully entitled thereto." Actual possession and occupancy are facts and not conclusions of law. The right to such possession is one thing, and may be dependent upon various facts.

The right to the possession of the land may be in one person, and the actual possession in another, but the actual possession is a tangible, corporeal fact and may always be so pleaded. The possession of real estate is prima facie evidence of the highest estate in the property, to wit, a seizin in fee. Hill v. Draper, 10 Barb. 458, (Allen, J.); Jayne v. Price, 5 Taunt. 326. The statute is passed upon...