121 Minn. 233 | Minn. | 1913
Action for money had and received, to recover $4,000, with interest from May 28, 1901. The cause was tried to the court, without a jury. Findings were made awarding the plaintiff $2,000, with interest from May 8, 1907. Judgment was subsequently rendered thereon, and both parties appealed.
We will briefly recite the main facts necessary to an understanding of the controversy, leaving other facts specially material upon the several branches of the case, both admitted and disputed, to be stated when we come to consider the point to which they relate.
■ In 1856 one John Kennedy became the owner of lot 2, block 32, in the city of Faribault. This lot, prior to 1871, with the exception of a few feet of its west end, remained vacant and unoccupied. The
In 1871 one Patrick Reardon and Rose Ann, his wife, became the owners of lots 9 and 10 in the same block. These lots were the same size as lot 2, lot 9 being immediately west thereof and lot 10 south of' lot 9. In the same year, and during each year thereafter until 1878,. Reardon and his wife had a garden on lot 9, which extended for at few feet over upon the west end of lot 2 the entire width thereof, and during the years mentioned they deposited and superintended the deposit of refuse and soil east of the garden, thus making the part of’ lot 2 so filled suitable for cultivation for some 80 feet towards the east. In 1878 the Reardons constructed a fence along the north line of lots 9 and 2 as far as the land was tillable and planted a garden upon all the land suitable therefor, and continued to maintain suehi fence and cultivation until 1888. In that year Patrick died, and his; wife, succeeding to whatever interest he had in the lots mentioned,, continued the cultivation referred to until 1890, but not thereafter. In 1893 she conveyed all of the property mentioned to the city, which took and held possession thereof until 1901. No one occupied lot 2. or exercised any acts of ownership thereover for 30 years prior to> 1901, except the Reardons and the city. In April of that year a railway company instituted proceedings to condemn lot 2 for railway purposes, and thereafter such steps were.taken that $4,000 was assessed as damages and paid into court, and the railway company took possession of the property. Subsequently, and on July 19, 190-1, the city, upon an order of court, obtained such sum out of court, and has since retained the same. In 1882, John Kennedy died testate, his wife, Jennie, surviving him. The will contained no specific devise of lot 2, but Jennie MeEwen was named as residuary legatee. In 1883 the plaintiff qualified as executor, and thereafter, in 1907, brought the present action in which the ultimate claim of both parties, is to the ownership of the entire fund mentioned.
In connection with these points, the record discloses that the executor of the Kennedy estate rendered a final account showing that he had paid the funeral charges and costs of administration, and that thereupon, on November 7, 1883, the probate court made its order reciting the ascertainment and adjustment of the debts of the deceased and the examination and passing of the executor’s account, from which it appeared that he had, for distribution, $1,817.45, the same being insufficient fully to pay the ascertained debts. It also appears ■that the court directed pro rata distribution which left a deficit of $771.39. Upon this showing, and in connection with the city’s point that .this action should be dismissed, it is argued that in no event •could the plaintiff be entitled to any more of the fund in controversy than enough to pay such deficit.
We cannot sustain these contentions. As suggested by the Chief Justice upon the oral argument, the objections urged, save only those to the jurisdiction of the court and the sufficiency of the facts to constitute a cause of action, were waived under R. L. 1905, § 4129, the same appearing upon the face of the complaint and not having been raised by demurrer or answer. We think, also, that the plaintiff’s right of action is unquestionable. As executor he had the absolute right to the possession of the land, without regard to the sufficiency of the personal assets to pay debts (R. L. 1905, § 3705; Miller v. Hoberg, 22 Minn. 249; 1 Dunnell, Minn. Dig. § 2722), and such right continues until the estate is finally settled (In re Scheffer’s Estate, 58 Minn. 29, 59 N. W. 956). Since, therefore, the plaintiff has never been discharged as executor, and as the fund involved stands'in the place of the land (Smith v. City of St. Paul, 65 Minn. 295, 297, 68 N. W. 32), he likewise has the right, as
From the above resume of the statutes, it will at once be noted that it is in section 2609 alone that any suggestion is made from which it might be inferred that the titles of claimants as between themselves are to be determined in the condemnation proceedings.
It is true that it was held in Brisbine v. St. Paul & S. C. R. Co. 23 Minn. 114, 128, under a statute making no provision for notice of the application to condemn, that “whenever * * * either by an indefinite statement in the petition as to the interest of the claimant in the property, or by one not accepted by him as true before the commissioners, it becomes necessary for them to inquire into and decide the question of title or interest as incidental to the question of damages, it is proper matter for their consideration, and their decision thereon is reviewable, upon appeal, in the district court.” It is also true that where jurisdiction has attached the award of the commissioners as to each claimant is conclusive as between the corporation and all parties claimant and their privies (Trogden v. Winona & St. P. R. Co. 22 Minn. 198), and that it has been held that as be
And if the title as between the parties to this action was not in issue in the condemnation proceedings, we cannot bold that it was put in issue by or upon the city’s application to the court for the fund, pursuant to which the order of July 19 was made, the same having been upon ex parte affidavits and without further notice to anyone. the rule against collateral attack has no application to such an order, and we bold, therefore, that, notwithstanding the very broad provision of section 2650, the plaintiff is not concluded by such order. In this view of the case it is not necessary to pass upon the question as to
But the city contends that if the executor is not bound, so far as concerns his claim to the fund in controversy, by the condemnation proceedings or by the order of July 19, then his rights are in no way affected, and hence he still has his remedy against the railway company and cannot maintain his present action. We cannot so hold. The report of the commissioners assessed the $4,000 in controversy as “the damages which will result to any person, company or corporation by reason of the construction of such branch railroad and the taking” of the property for such purpose, and the statute, section 2649 above cited, under which the railway company paid the money into court, expressly provides that where, as was done in this case, the railway company files an affidavit of doubt as to who is entitled to the damages, then “upon making such payment into court of the damages assessed 'x' * * such railroad company shall be released and discharged from any and all further liability therefor,” unless the damages are increased upon an appeal, etc. In other words, the report of the commissioners, though undertaking to award the damages to the city, nevertheless purported to and did assess the damages of any and all persons interested in the lot, and not merely the damage to the city’s interest, if any, therein. The very purpose, therefore, of the statute would he defeated if it were to be held that the real owner of the fund, if the city be not such, could not pursue the same in the hands of the city, but1 must bring an action against the railroad company for further damages.
Furthermore, it is settled in this state that the damages assessed stand in the place of the property taken, (Moritz v. City of St. Paul, 52 Minn. 409, 414, 54 N. W. 370; Boutelle v. City of Minneapolis, 59 Minn. 493, 497, 61 N. W. 554; Smith v. City of St. Paul, 65 Minn. 295, 297, 68 N. W. 32; Lumberman’s C. Ins. Co. v. City of St. Paul, 82 Minn. 497, 503, 85 N. W. 525; North Coast v. Hess, 56 Wash. 335, 105 Pac. 853; 2 Lewis, Eminent Domain, § 894) and that the real owner thereof may sue as for money had and received to recover the same from any one into whose hands they may come,
Judgment affirmed.