99 Minn. 11 | Minn. | 1906
This is an appeal from an order denying a motion for a new trial. The action was brought by Henry L- Trimble against the Lake Superior & Puget Sound Company and all other persons and parties unknown claiming any right, title, or interest in the property described in the complaint. The company did not appear, but an answer was interposed by Christopher Burns which denied the claim of title asserted hy the plaintiff and alleged that said Burns was in possession of the premises when the action was brought, and that he had acquired title thereto by adverse possession. The court found that the plaintiff was in possession of the premises, and that Burns failed to prove his title "by adverse possession during the statutory period.
An examination of the record convinces us that the plaintiff was not in possession of the premises when he commenced this action, and that his so-called record title is of no importance, as it rests upon a void
It appears that in the year 1873 Patrick Burns, the father of the defendant Christopher Burns, settled on the one hundred sixty acres of ' which this eighty acres forms a part. He soon thereafter built a house on the eighty acres in question, and he and his family lived on the land until 1884. In 1883, Patrick Burns, learning that he could not acquire title to the eighty acres in'question, turned over whatever rights he had to his son Christopher. Thereafter Patrick Burns acquired title to the north half of the section and made no further claim to the south half, which is the land involved in this action. Christopher Burns claims that he received possession of the land from his father in 1884 and has held continuous possession ever since adverse to all the world. As , there must be a new trial it is not necessary for us. to determine the correctness of the finding of the trial court upon the issue of adverse possession.
It is, however, evident that during all these years Christopher Burns claimed to own the land and assumed to be in possession of it. From time to time he invested money in improvements and paid the taxes every year as they became due. He lived on the land from 1884 until
These conditions fairly appear from the evidence, and they do not show possession on the part of .Trimble. What took place between Trimble and Peterson was a mere paper transaction. A tenant cannot in this way deprive his landlord of possession and place an adverse claimant of the title in constructive possession. An attornment to another without the consent of the landlord does not affect the landlord’s possession. Blue v. Sayre, 2 Dana, 213; McCartney v. Auer, 50 Mo. 395; Cobb v. Robertson (Tex. Sup.) 86 S. W. 746; Stover v. Davis, 57 W. Va. 196, 49 S. E. 1023. Burns was in possession by his tenants Brackley and Peterson. Both leases extended until May, 1905. It is true that Brackley did not live on the land, but he cultivated it during the season and had control over it until the end of his lease. A lease can be terminated only by mutual agreement between the lessor and lessee, or hy some act of the party against whom it is claimed inconsistent with the continuance of the term and the validity of which he is estopped to deny. Nelson v. Thompson, 23 Minn. 508. Neither Peterson nor Brackley could terminate his lease without the consent .of Burns. Brackley does not appear to- have attempted to do so, and
The order appealed from is reversed and a new trial granted.