From the record and findings in this case, it appears that on and prior to the 17th day of May, 1867, one Charlotte W. Brown was the owner in fee of government lot 4, in section 32, township 29, range 24, in Hеnnepin county, which is the land in controversy, to which plaintiff claims title. Mrs. Brown died on that day, the land then being incumbered by a mortgage by her executed to one A. G. Ruliffson on January 5, 1867, for $940, payable in one year, with interest at 12 per cent. March 13, 1868, one J. C. Whitney was appointed administrator of her estate, and thereupon qualified, and entered upon his duties as such. Thereafter the mortgagee brought an action to foreclose his mortgage, in which the administrator was made defendant, but the heirs of the deceased mortgagor, of which the plaintiff was one, were not made parties; and thereafter such proceedings were had that judgment of foreclosure was duly entered, and the mortgaged prеmises duly sold to the mortgagee for the amount due, being about $1,200. The certificate of sale was duly issued and recorded, and the sale confirmed, during the same year, 1868. The foreclosure proceedings were afterwards completed, the sale confirmed, and the record thereof duly made, including the recording of the certificate of forеclosure sale. There having been. no redemption, the mortgagee, Ruliffson, sold and conveyed the premises by warranty deed to the defendant, in consideration of the sum оf $2,200, which deed was duly recorded September 12, 1870. The defendant sets out his title substantially as above stated, and alleges that he entered into actual possession of the premises upon the delivery of the deed to him, “occupying, using, and paying taxes thereon, and has continued in possession of the same from that date up to the present time, — mоre than fifteen years.” . The plaintiff, in reply, ad-
Subsequent to the foreclosure, it seems that a will of Mrs. Brown was produced, and allowed аnd admitted to probate on the 27th day of August, 1869; and in December following an administrator with the will annexed was appointed, who thereafter qualified. The will devised several parcels of real estate to divers parties, and the real estate in question here to the plaintiff and one Julia Jellison. On the 25th day of December, 1869, the administrator filed an inventory of the real estate of the deceased, and a petition for a final decree of distribution; and such decree was thereafter made and entered in the prоbate court. But neither the inventory, petition, nor decree of distribution included or referred to this land in question, devised to and claimed by the plaintiff; and the inventory and petition rеferred to contained a statement that all the debts of the deceased had been fully paid except a small debt of less than $100, and the final decree contained a recital to the same effect. Both the debt due Ruliffson and the property mortgaged to secure it were ignored by the administrator and the probate court in the prоceedings for the settlement of the estate of the testator. It does not appear that the second administrator ever took possession or made any clаim to it. At that time, it was in the possession of Whitney, who delivered it to the defendant when the latter received his conveyance from the mortgagee. The administrator doubtless treated the mortgage debt as paid by the sale of the land, and considered that the latter was lost to the estate by the foreclosure. The court further finds that the defendant entered into the actual possession of the premises under his deed, which was duly recorded, “and from that time till the month of June, 1887, remained in the actual, open, notorious, and exclusive possession thereof, with the assent of plaintiff.”
The evidence offered by the defendant is sufficient to support the finding of the court in respect to his actual and continued possession of the premises until the year 1887, when he removed the fences, and
It is found by the court that the defendаnt entered into possession under color of title, claiming to be the owner in fee; and the case does' not differ materially, in this respect, from that of Johnson v. Sandhoff,
The court, however, also finds that the plaintiff had no actual knowledge of the mortgage, or of defendant’s claim or possession and occupation of the premises, prior to the year 1887; and he insists that there could be no assent or acquiescence wherе there is no actual knowledge. But, as respects the rights and claims of third
In like manner, plaintiff was chargeable, after a reasonable time,, with notice of the actual, open, notorious, and continuеd possession of defendant, who entered and occupied as owner, exercised exclusive dominion over the property, and paid all the taxes thereon, for nearly 20 years; the plaintiff, who was a non-resident, having in the mean time made no sign, asserted no rights, and apparently abandoned the possession and all claim to the prеmises. And plaintiff’s own negligence may well be considered as tending to induce the defendant to rest securely in possession of the property under the impression and belief that he had a good title under his deed, and to refrain from proceeding to a second foreclosure until it was too late» Graydon v. Church,
' The defendant, as purchaser or assignee, was interested in the property, and in preserving the improvements, and in paying the taxes, for his own protection; and, under the circumstances, it was a reasonable and apparently the proper thing for him to do, if no claimant appeared, to peaceably assume possession of the property, and the assent and acquiеscence of the absent plaintiff in his continued possession may well be presumed; and, if it remained undisturbed and unchallenged until the time of redemption had passed; plaintiff’s remedy would be lost through his own inexcusable laches. The open and visible evidence of the defendant’s possession was notice to all the world of the nature of his claim, whether legal or equitable. Poignard v. Smith,
Order affirmed.