65 Minn. 115 | Minn. | 1896
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
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
Order reversed, and new trial granted.