209 N.W. 37 | Minn. | 1926
This action was begun in the fall of 1924. An action had also been brought in February of that year by the plaintiff herein against the defendant Hoff and his landlord, G.H. Stavens, to recover possession of the farm on which the rye in question was growing. In his answer therein Stavens alleged ownership and right of possession, and also in the alternative that if he were found not to be the owner he be adjudged a mortgagee in possession and be decreed entitled to continued possession. That action was tried to the court immediately before the replevin action. But no decision was filed in either case until some months thereafter. It was stipulated that the evidence taken in either action, so far as applicable, might be considered in making the findings in each. The evidence in the first action tried is not part of the settled case herein, but the findings are in the settled case and must be taken as verities on this appeal. *415
The undisputed facts are these: Halvor Gunderson, the plaintiff in each case (now deceased and his administrator substituted), was the owner of the farm upon which were three mortgages, the second one of which for $5,000 had been foreclosed in April, 1921, and the premises bid in by Thomas C. Day and George W. Wishard for $6,366.12. On April 9, 1922, defendant Stavens made a redemption at the request of Halvor Gunderson. Stavens had also at Gunderson's request purchased a mortgage held by a bank. Whether the redemption was made in virtue of being the holder of a subsequent mortgage does not appear, but is perhaps to be inferred. Because of the redemption the court found that Stavens became owner of the paper title to the farm, but that such title was intended to be as security for the money advanced by said Stavens in the redemption and purchase of the mortgages. The finding which, as stated, must be taken as true in the absence of all the evidence is: "That said Halvor Gunderson continued in the possession of said premises until the month of October, 1923, at which time said G.H. Stavens, with said Gunderson's consent, took possession thereof and he placed the defendant, Oscar Hoff, upon said premises as his tenant and gave him possession thereof, all with the consent of said Halvor Gunderson." The conclusion of law was that Stavens at his death was a mortgagee in possession and his administrators are now in possession as such by the tenant Hoff, and are entitled to continue in such possession until payment is made, and that, since no evidence was offered as to the actual amount due the administrator of Stavens, the court retains jurisdiction until proof be made thereof.
It is plain that under the state of facts here present, G.S. 1923, § 9569, upon which appellant relies, has no application. That section is found in the legislation relating to occupying claimants' rights and reads: "In case of ejection, the occupant shall be entitled to enter upon the land, and gather and remove all crops sown thereon prior to entry of judgment against him." Under the findings there can be no judgment ejecting plaintiff's administrators for they are not in possession. And in Backus v. Burke,
We do not differ from appellant as to the law announced in Goodwin v. Clover,
Appellant cites Bloemendal v. Albrecht,
The correctness of the finding that the tenant Hoff was the owner of the rye is questioned as well as the finding as to the position of the defendant elevator company. It is immaterial to plaintiff who is found the owner, so long as the finding remains that plaintiff failed to show himself such. The findings may not be in the best form, but they do in a negative way settle plaintiff's want of ownership. No motion for amended findings was made, and the only proposition before us is whether there is support for the ones made which materially affect appellant.
The order is affirmed.