Lind v. Lind

53 Minn. 48 | Minn. | 1893

Gilfillan, C. J.

Action to determine adverse claims to certain real estate; plaintiff claiming to be in possession, to have the fee to an undivided half, and a life estate and homestead right in the other undivided half. The cause was tried by a referee. 'The evidence before him amounted to nothing, so that he had to decide the cause on the facts admitted in the pleadings. It is admitted that plaintiff and Ludwig Lind intermarried in 1874; that, at the time of or immediately before the marriage, Ludwig was the owner of the real estate, and continued the owner of at least an undivided half thereof till his death, and that he and plaintiff lived upon and occupied the real estate as a homestead till, in 1888, he died intestate, leaving plaintiff his widow, and the defendants, Christof, Michael, Elizabeth, Catherine, and Phoebe, his children and heirs at law; and that plantiff occupied the real estate as a homestead for some time thereafter.

When ownership of real estate is shown to have existed at any time, it is presumed to have continued until it is shown to hare ceased. Plaintiff’s admission in the reply that at or immediately before the marriage, in 1874, Ludwig owned the land in fee, with the presumption, established the allegation in the answer that he died seised, there being no facts admitted showing that his ownership of any part of or of any interest in it ceased. Of course the allegations in the reply of a conveyance by him to plaintiff, being-new matter, were put in issue by operation of law, and, the answer, while it admits that he signed a deed, denies that it was delivered; so that the matter stood for proof, which was not made.

Plaintiff’s possession was sufficient to justify her in bringing the action, and calling upon defendants to allege and prove their title. This they do by showing, as already stated, that their ancestor died seised.

The judgment as entered does not follow the direction for judgment in the referee’s decision, but that is error of the clerk; and the proper remedy is, in the first instance, by application to the court below.

Judgment affirmed.

Vanderburgh, J., took no part in this decision.

(Opinion published 54 N. W. Rep. 934.)