31 Minn. 500 | Minn. | 1884
Defendant conveyed to plaintiffs’ intestate, by deed, with covenants of seizin and warranty, lot 14, block 97, in the town of Minneapolis, July 26, 1877. He had acquired title and actual possession, under a deed from one C. B. Bussell, on the 25th day of July, 1876. Bussell had been in the actual possession since July 1, 1856, under a deed of warranty, by which he acquired the title to the lot, subject to a mortgage to Ovid Pinney of an undivided one-sixteenth part of the rear 99 feet thereof, which is the subject of this con
1. We agree with the court below that if Washburn had a valid ¡subsisting title to the interest claimed by him, the plaintiffs might •maintain this action for a breach of the defendant’s covenant of •seizin. The fact that the administrators had filed their account, and •that the same had been allowed and an order of distribution made while this action was pending, did not abate the action, nor relieve •the administrators of their official responsibilities and duties, they not having been finally discharged. Until discharged it was competent for them to collect claims due the estate. The covenant of seizin in defendant’s deed being a personal covenant, the right of action for the breach thereof passed to these plaintiffs as the personal representatives of the covenantee, and not to the heirs; and the same not having been previously assigned, as by his conveyance or otherwise, may be enforced by the plaintiffs in their representative capacity. Kimball v. Bryant, 25 Minn. 496.
2. The point is made that the description of the premises contained in the sheriff’s certificate of sale to Pinney, which the court finds was filed for record on the 21st day of October, 1858, in the proper county, is so indefinite and uncertain that no title passed by the sale, and the record thereof was no notice to subsequent purchasers. The parties, by their counsel, have by stipulation caused a certified copy of the record of the certificate to be sent up to be considered in connection with the findings of the court, (no statement of the case having been made,) from which we think the description appears to be sufficient.
3. Bussell took and held his title in subordination to the mortgage. Upon its foreclosure, and upon receipt of the sheriff’s deed, Pinney* the purchaser, became entitled to an undivided one-sixteenth interest in the lot in controversy, and since Bussell, as owner of the remaining undivided fifteen-sixteenths, was entitled to the possession of the whole as tenant in common, it follows that his possession must be deemed in law the possession of Pinney, and hence not adverse. Berthold v. Fox, 13 Minn. 462, (501;) Holmes v. Williams, 16 Minn. 146, (164.) The statute of limitations in such case would not begin to run against the latter or his grantee until an ouster or the assertion of some hostile claim inconsistent with Pinney’s title and possession as tenant in common, and denoting an intention to claim the whole lot adversely. But here the court finds no fact from which such inference can be drawn. There was no attempt on Pinney’s part to take possession, and no hostile intention manifested in opposition to his rights, and no subsequent change in the character of Bussell’s possession down to 1876, when he conveyed to defendant. Culver v. Rhodes, 87 N. Y. 348, 354; Jackson v. Tibbetts, 9 Cow. 241, 252; McClung v. Ross, 5 Wheat. 116; Angell on Limitations, (6th Ed.) § 425; Tyler on Ejectment, 877, 927; Freeman on Cotenancy, § 241; Sedg. & Wait, Title to Land, § 750.
The law fixes the relations of the parties, which are not affected by the fact that Bussell had actual notice of the foreclosure. He was bound to take notice of the mortgage, and of the fact that it might ripen into a title by foreclosure. Maxwell v. Hartmann, 50 Wis. 660.
In this connection may also be considered the relation which a purchaser, upon a valid foreclosure sale, sustains to a mortgagor or his grantee remaining in possession. In such cases, after the title passes, the legal presumption is that the possession is in accordance with, and in subordination to, the title of such purchaser, and is under him with his acquiescence, unless the contrary appear, or until an intention to claim the premises adversely is made manifest. Avery v. Judd, 21 Wis. 262, 266; Seeley v. Manning, 37 Wis. 574, 581; Maxwell v. Hartmann, supra; Cook v. Travis, 20 N. Y. 400; Tyler on Ejectment, 920; Sedg. & Wait, Title to Land, § 749. Bussell ceased, in December, 1860, to be entitled to the sole possession of the whole, in severalty. Pinnev’s right then attached for the first time as tenant in common. There is nothing to show that Pinney might not reasonably assume that the ordinary legal consequences would follow from the legal relations of the parties. There must be evidence of the existence of facts sufficient to set the statute in motion, subsequent to the time that the relation of cotenancy commenced under the mortgage foreclosure; that is to say, evidence of hostility in fact and notoriety of the adverse claim. Foulke v. Bond, 41 N. J. Law, 527, 538.
Judgment affirmed.