Union Central Life Ins. Co. v. Page

• Decision Date: 22 December 1933
• Docket Number: No. 29616.,29616.
• Citation: 251 N.W. 911,190 Minn. 360
• Parties: UNION CENTRAL LIFE INS. CO. v. PAGE et al.
• Court: Minnesota Supreme Court

251 N.W. 911

190 Minn. 360

UNION CENTRAL LIFE INS. CO. v. PAGE et al.

No. 29616.

Supreme Court of Minnesota.

December 22, 1933.

Appeal from District Court, Freeborn County; Norman Peterson, Judge.

Action by the Union Central Life Insurance Company against Alfred C. Page, Fred Smith, D. O. Dockendorf, the Hayward Farms Company, and others. From an adverse judgment, Fred Smith, D. O. Dockendorf, and the Hayward Farms Company appeal.

Affirmed.

Nels Quevli, of Lakefield, for appellants.

S. M. Waters, of Minneapolis, and Meighen, Knudson & Sturtz, of Albert Lea, for respondent.

DIBELL, Justice.

Action to quiet title to 720 acres of land in Freeborn county. There were many defendants. There were findings for the plaintiff. Judgment was entered pursuant to the findings adjudging it to be the owner of the lands in controversy and adjudging that the defendants had no right therein and that their claims be barred. The defendants Fred Smith, D. O. Dockendorf, and Hayward Farms Company, a corporation, appeal from the judgment. No other party appeals.

1. By 2 Mason, Minn. St. 1927, § 9556, it is provided: "Any person in possession of real property by himself or his tenant, or any person having or claiming title to vacant or unoccupied real property, may bring an action against any person who claims an estate or interest therein, or a lien thereon, adverse to him, for the purpose of determining such adverse claim and the rights of the parties, respectively."

The plaintiff in its complaint stated the source of its title and alleged that it and its predecessors in title had been in actual open and adverse possession for more than 15 years. Its allegation of possession was sufficient under the statute and was more specific and of longer duration than was necessary. It was sufficient to admit proof of title by adverse possession. The plaintiff alleged that after it acquired title and within a year before the commencement of the action, it gave to two persons, Henry J. Petran and Paul H. Petran, contracts of sale for the land and that they were in possession under the contracts.

It is the claim of Smith and Dockendorf that the possession of the plaintiff, in view of the allegation as to the sale on contract to the Petrans, and their possession, does not satisfy the statute.

There is no settled case or bill of exceptions. All that is raised on the appeal is the sufficiency of the findings to support the judgment. Where there is no settled case or bill of exceptions, it is presumed that the evidence was sufficient to sustain the findings and, if the facts found are not within the issues, that they were litigated by consent. In re Trusteeship under Will of Rosenfeldt, 185 Minn. 425, 241 N. W. 573; Riebel v. Mueller, 177 Minn. 602, 225 N. W. 924, 66 A. L. R. 1; State ex rel. Yapp v. Chase, 165 Minn. 268, 206 N. W. 396; Anderson v. City of Montevideo, 137 Minn. 179, 162 N. W. 1073; Charles Betcher Lumber Co. v. Hastings, 131 Minn. 249, 154 N. W. 1072; Gourd v. County of Morrison, 118 Minn. 294, 136 N. W. 874; Pavelka v. Pavelka, 116 Minn 75, 133 N. W. 176; Peach v. Reed, 87 Minn. 375, 92 N. W. 229; Stevens v. Stevens, 82 Minn. 1, 84 N. W. 457; Wheadon v. Mead, 71 Minn. 322, 73 N. W. 975; Brigham v. Paul, 64 Minn. 95, 66 N. W. 203; 1 Dunnell, Minn. Dig. (2d Ed. & Supp.) § 344. The two defendants cannot assail the sufficiency of the plaintiff's possession.

2. Smith and Dockendorf alleged that they owned the lands involved and asked judgment decreeing them to be the owners. The fact of possession or vacancy is not a jurisdictional fact, nor does it go to the merits of the controversy as to title. It goes only to the right of the plaintiff to present his claim of title under the form of action authorized by section 9556, quoted above. If a defendant alleges title in himself and asks judgment quieting it, he waives objection to the form of the action, and the fact of possession or vacancy is unimportant. Baker v. Berg, 138 Minn. 109, 164 N. W. 588; Palmer v. Yorks, 77 Minn. 20, 79 N. W. 587; Kipp v. Hagman, 73 Minn. 5, 75 N. W. 746; Todd v. Johnson, 56 Minn. 60, 57 N. W. 320; Mitchell v. McFarland, 47 Minn. 535, 50 N. W. 610; Burke v. Lacock, 41 Minn. 250, 42 N. W. 1016; Windom v. Schuppel, 39 Minn. 35, 38 N. W. 757; Hooper v. Henry, 31 Minn. 264, 17 N. W. 476; 5 Dunnell, Minn. Dig. (2d Ed.) § 8044; 51 C. J. p. 188, § 106. For this reason the two defendants cannot say that the action is not well brought.

3. The position of the Hayward Farms Company is different. It made default. It appeals from the judgment. It may urge the insufficiency of the pleadings to state a cause of action; and the relief granted plaintiff must be within the allegations of the complaint and the demand for relief. In Rathborne, Hair & Ridgeway Co. v. Wheelihan, 82 Minn. 30, 84 N. W. 638, it was held that a judgment entered against a defendant in default, not authorized by the allegations of the complaint, was subject to review on appeal. So, in an action to determine adverse claims, the plaintiff, on default of the defendant, is entitled only to such judgment as the complaint in its statement of facts and demand for relief warrants. Sache v. Wallace, 101 Minn. 169, 112 N. W. 386, 11 L. R. A. (N. S.) 803, 118 Am. St. Rep. 612, 11 Ann. Cas. 348; LaRue Iron Mining Co. v. Village of Nashwauk, 176 Minn. 117, 222 N. W. 527; 2 Mason, Minn. St. 1927, § 9392; 3 Dunnell, Minn. Dig. (2d Ed. & Supp.) § 4996, and cases. In the case at bar the relief granted against the farm company was within the prayer of the complaint. The question is upon the allegations of possession.

4. The possession which plaintiff must show under section 9556 is possession by himself or tenant, and it is actual as distinguished from constructive. Miesen v. Canfield, 64 Minn. 513, 67 N. W. 632; Greene v. Dwyer, 33 Minn. 403, 23 N. W. 546.

Under the allegations of the complaint, the plaintiff, the vendor-owner, contracted to sell the land to the vendee-owners, the Petrans. The possession of a vendee-owner is not adverse to the vendor-owner; he holds in subservience to him. He can no more attack the title of the vendor under whom he holds than can a lessee deny the title of his lessor. Johnson v. Peterson, 90 Minn. 503, 97 N. W. 384. The plaintiff argues with force that, since the possession of the vendee-owner under his equitable title is not adverse to the plaintiff, the latter has possession within the meaning of the statute substantially as it would if the vendee-owner were a tenant in possession under his lease. Applying the doctrine of the Johnson Case, 90 Minn. 503, 97 N. W. 384, the argument is that the possession of the Petrans was the possession of the plaintiff within the conditions fixed by the statute for the maintenance of the statutory action to determine adverse claims. There is authority in the cases that a plaintiff who has given an executory contract of sale to a vendee who takes possession, and whose contract is afterwards canceled, can claim the vendee's possession is his own in an action resting title upon adverse possession. Merritt v. Westerman, 165 Mich. 535, 131 N. W. 66; Kirby v. Boaz, 103 Tex. 525, 131 S. W. 533; Oldig v. Fisk, 1 Neb. (Unof.) 124, 95 N. W. 492. The plaintiff argues that with the law so it should be held that for the purpose of the statutory action to determine adverse claims the possession of the vendee-owner is the possession of the vendor-owner. These cases, however, are explained most neatly by an application of the doctrine of tacking; and as so explained they do not give force to the plaintiff's contention.

Not much authority upon the plaintiff's claim is to be had. In Thomas v. White, 2 Ohio St. 540, the question discussed was upon the sufficiency of the claim of possession. The court referred to the possession in a tenant as possession in the owner. It said : "How is it in the present case? Thomas does not himself occupy the land, but his vendees, or their assigns, to whom as yet no conveyance has been made, do occupy it. They are in possession claiming title under Thomas, and not adversely to him. Under such circumstances, their possession is his possession, so far as the present question is concerned."

In Kaufman Realty Co. v. Unknown Heirs of Lucas, 23 Ohio App. 470, 155 N. E. 173, 174, Thomas v. White, 2 Ohio St. 540, was approved, and the court said: "* * * The actual possession of the premises by the present vendee of the realty company is the possession of said realty company, within the meaning of the statute authorizing actions to quiet title."

There was no discussion. In Bigelow v. Brewer, 29 Wash. 670, 70 P. 129, 131, the statute in Washington, Ballinger's Ann. Codes & St. Wash. § 5521, authorizing an action by any person "in possession by himself or his tenant" to determine adverse claims, the court, referring to the vendee-owner in possession, said that he "may not have been a tenant, strictly so called, in the ordinary meaning of that term as applied to a lessee, but his possession was analogous to that of a lessee, since he was placed in possession by respondent, and held it for respondent as well as for himself."

We find no case in direct opposition to those cited. Upon the authority of them, we hold that the allegation of possession in the complaint is sufficient notwithstanding the further allegation that the plaintiff had contracted to sell the lands to the Petrans, who were in physical possession under their contracts; their possession not being hostile to the title of the plaintiff but in subservience to it. In holding so we do not neglect our holdings that the owner's possession must be actual or by tenant; nor do we overlook that the vendee-owner in possession, since he has an equitable title, may maintain an action to quiet title. School-district v. Wrabeck, 31 Minn. 77, 16 N. W. 493; 5 Dunnell, Minn. Dig. (2d Ed.) § 8043. We do not hold that the vendor-owner may maintain an action to determine adverse...