Wagner v. Finnegan, 65 Minn. 115

Wagner v. Finnegan

65 Minn. 115 | Minn. | 1896

COLLINS, J.

After an order overruling a general demurrer to tbe complaint in this action was reversed on appeal (54 Minn. 251, 55 N. W. 1129), tbe complaint was amended, and an answer interposed in "which tbe execution and delivery of tbe deed to 'Scbuppel was admitted, and also that defendant bad no title to tbe land conveyed. Defendant also set up tbe statute of limitations in bar of recovery. A trial was bad, and upon its findings of fact tbe court ordered judgment in defendant’s favor. Tbe plaintiff’s counsel then moved for two additional findings of fact, and tbe motion was denied. Subsequently tbe court denied plaintiff’s motion for a new trial.

Tbe facts alleged in tbe original complaint are briefly stated in tbe opinion on tbe former appeal. They were there construed as failing to show a breach of tbe covenant of seisin or of warranty, and these defects in tbe complaint were cured by amendment. At tbe conclusion of tbe trial tbe court made its findings of fact, and, so far as they went in that direction, they were ample to sustain an order for judgment on a breach of tbe covenant of warranty. Among other things, tbe court found that, when Windom commenced bis actions, plaintiff and Scbuppel were in possession of their respective tracts of land, and that each so remained in possession until after judgments were entered quieting tbe adverse claims made by them to the land, adjudging Windom to have been tbe owner in fee when defendant’s *117deed to Schuppel was executed and delivered, and to have continued thereafter to -be the owner. As conclusions of law the court found that an action on the breach of the covenant of seisin was barred by the statute of limitations, and that the facts found were insufficient to constitute eviction or ouster from the premises, and therefore plaintiff could not recover. The further findings of fact sought to be obtained by the motion were, in substance: First, as to whether plaintiff and Schuppel surrendered possession or ceased to occupy the land, and, if so, at what time; and, second, whether the surrender or discontinuance of occupation was on account or by reason of the Windom judgments. And, as already stated, the trial court refused further findings.

Defendant’s counsel contend, upon appeal, that plaintiff was not entitled to either of these findings, because a mere surrender of possession or a discontinuance of previous occupation, without a further finding that the surrender was to Windom, or, at least, to somebody, would not amount to an eviction or ouster, and therefore the proposed findings would be immaterial, if made. It was not essential for the court to find that plaintiff and Schuppel surrendered possession to Windom, or to -any other person. Actual surrender to some particular individual was no more necessary, in order to obtain a right of action on the covenant, than was an actual eviction or ouster. The law on this subject was well and fully stated in Ogden v. Ball, 40 Minn. 94, 41 N. W. 453. An outstanding superior title to the premises existed when defendant deeded, and while plaintiff and Schuppel were in possession under the deed there was a hostile assertion of the paramount title by the holder, in the nature of actions to determine adverse claims, of which actions defendant was duly notified, and required to defend. It was not incumbent upon plaintiff or Schuppel, after the entry of judgment in these actions, and in defiance thereof, to persist in claiming to be the owners, refuse to abandon the premises, and await actions in ejectment and eviction by legal process. It had been formally adjudged in these actions that Windom was the owner of the land in fee, and an abandonment of possession in consequence of the judgment constituted constructive eviction therefrom. And the right of action on the covenant became complete when there was constructive eviction.

The second of the findings asked for was not well drawn, but what *118was desired by counsel seems plain. If the court had found that plaintiff and Schuppel surrendered possession and ceased to occupy the land by reason of the Windom judgments, no doubt would arise as to what effect should be given the finding. In substance, it would be equivalent to a finding that plaintiff and Schuppel surrendered and abandoned their possession and occupancy because Windom had asserted his paramount title in actions brought against them, and his title had been sustained and adjudicated upon in his favor. If the evidence on this point was conclusive in plaintiff’s favor, he was entitled to an affirmative finding to that effect. If, upon the other hand, there was evidence which would have warranted such a finding, the court should have found one way or the other, and this it declined to do. To say the least, there was an abundance of evidence to support a finding in plaintiff’s favor, and it was error for the court to refuse to pass upon the question.

Order reversed, and new trial granted.