48 Minn. 366 | Minn. | 1892
The ease as presented on a former appeal in this action is reported in 43 Minn. 468, (45 N. W. Rep. 861.) This appeal is upon the case made at the second trial of the cause. In May, 1889, the plaintiff introduced an amended complaint, upon. which issue was joined by an amended answer, and upon which the cause was tried. At tbe close of the trial the court directed a verdict for the defendants, upon the ground that the cause of action presented in the amended complaint, and upon which by compulsion the plaintiff elected to stand, had become barred by the statute of limitations subsequent to the commencement of the action, and before the filing of the amended complaint. Two principal questions are presented: First, whether the court erred in requiring the plaintiff to elect; and, second, whether the cause of action set forth in the amended complaint was a new cause of action, not before a subject of the litigation, so that it had become barred by the statute since the commencement of the action.
1. For convenience we will first consider the .second of these questions. As to this, we think that the court erred. Both. complaints are founded upon an alleged breach of covenants in the deed executed by the original defendants, Franklin J. Schreiber and wife, to the plaintiff, in 1881, which deed, with the usual covenants of warranty, for quiet enjoyment and freedom from incumbrance, is fully set forth, in both pleadings. In both the breach of covenant is alleged to consist in the rights acquired by the Northern Pacific Baiiroad Company by grant from the United States, paramount to the title of the plain- ■ tiff’s grantors. It appears from both pleadings that the land in ques- ■ tion, and in respect to which the railroad company is alleged to have: such superior rights, is a strip of land extending through a seetiom
2. We have referred to an election by the plaintiff. After the evidence for the plaintiff had been introduced, he was required, on motion of the defendants, to elect upon which of the covenants he would rest his right of recovery. He elected to rest on the covenant against incumbrances, and the court, after the evidence was all in, directed a verdict as before stated; that right of action being regarded as first introduced by the amended complaint, and after it had been barred by the statute of limitations. We cannot recognize the case as justifying the requirement that the plaintiff elect upon which of the covenants he would rest his ease. He had pleaded all the covenants in the deed; and, though it be conceded that the evidence showed only a perpetual easement and possession in the railroad company, which would constitute a breach of the covenant against incumbrances, the same facts might also be relied on as constituting a breach, at least, of the covenant for quiet enjoyment. The facts alleged would justify this, and there would be no inconsistency in so doing. However, this was probably a matter of little practical consequence, for the plaintiff seems to have tried the case, before he was required to elect, with a view to recovery only for a breach of the covenant against incumbrances.
3. As to the allowance of the amendment of the answer upon default of the plaintiff to appear to oppose the motion, we need only to refer to Dols v. Baumhoefer, 28 Minn. 387, (10 N. W. Rep. 420,) and to add that the subsequent refusal of the court to revoke its order was not an abuse of discretion.
Order reversed.
(Opinion published 51 N. W. Rep. 120.)