Eastman v. Lamprey ( 1866 )

By the Cov/rt.

Wilson, Ch. J,

This action was tried by a referee, who made the following report and order. “This canse came on for trial, upon the issues joined by the pleadings, before the undersigned sole referee duly appointed by the Court in this behalf. And the said parties having appeared, by then* counsel, before the said referee, on the day appointed for the trial thereof aforesaid, the said plaintiffs introduced before the said referee competent evidence proving, or tending to prove the following facts, to-wit: That on the 10th December, 1856, Parker Paine was the owner in fee simple of the real estate described in the complaint, as therein alleged, and that on the same day the said Parker Paine, by a good and. sufficient deed of warranty, sold and conveyed to John W. Eastman and Arthur B. Morris, jointly, in fee simple, the said real estate; that on the 2d day of March, 1857, the said John W. Eastman and his wife, by a good and sufficient deed of quit claim, sold and conveyed to William W. Eastman, one of the plaintiffs, an undivided sixth part of said real estate, in fee simple; that on the 30th August, 1859, the said John W. Eastman and his wife, by a good and sufficient deed of quit claim, sold and conveyed to the said William W. Eastman, another undivided one-sixth part of said real estate in fee simple; that on the 10th day of September, 1860, the said William W. Eastman and his wife, by a good and sufficient deed of warranty, sold and conveyed to William K. Eastman, one of the plaintiffs, an undivided one-sixth of said real estate, in fee simple; that on the 31st January, 1857, the said Arthur B. Morris, by a good and sufficient deed of warranty, sold and conveyed to Morris Lamprey, the defendant, and to John W. Hurd and Henry S. Plumer, jointly, an undivided half of said real estate in fee simple; whereby it appeared that at the time of the commencement of the suit, the said plaintiffs and defendant each owned an undivided one-sixth part of said real estate in fee simple.

“The plaintiffs furthermore introduced competent evidence proving, or tending to prove, the following facts, viz: That one Frederick Eichenouer occupied the said real estate from the commencement of the year 1859, or thereabouts, until the year 1862, as the tenant of the joint owners of said real estate, paying rent therefor the first year to the parties owning the same, and during the second and third years to the said defendant, as agent of the owners of said real estate ; that on or about the commencement of the year 1862, said defendant notified said Eichenouer that he (the defendant) claimed the sole ownership of said real estate, and that thereafter, on the 10th day of January, 1862, the said defendant, in his own name, executed and delivered to said Eichenouer, a written lease, duly executed under seal by said defendant and said Eichenouer, of said premises, for the term of one year, reserving the rent to said defendant, which said lease was renewed by said parties thereto in writing, from year to year, and is still in force; that said Eichenouer accepted said lease and renewals, paid rent theretinder to said defendant, continued in occupation of said real estate, and continued to pay rent to said defendant as his tenant from year to year, to the time of the commencement of this suit; that the occupation of said real estate by said Eichenouer, from the year 1859 to the time of the commencement of this suit, was continuous and uninterrupted; whereupon the said plaintiffs rested and closed their case, and the defendant moved for a dismissal of the action, on the ground that the plaintiffs had failed to substantiate their alleged cause of action; and after hearing the counsel of the parties upon said motion, and considering the same, the said referee, finding for the purpose of said motion the facts to be as above stated, and that the evidence in the case did not prove, or tend to prove, any other facts than as before stated, determined, as conclusions of law, that the said plaintiffs had failed to substantiate their cause of action, in that there was no evidence proving, or tending to prove, that the said plaintiffs, by themselves, or their tenants, were in possession of the premises claimed by them, at the time of the commencement of the suit; whereupon the plaintiffs then moved to amend their complaint, so as to set up specifically the nature and character of the adverse claim of the defendant with a prayer for appropriate relief; which said motion being opposed by defendant, was overruled. (An exception by request of plaintiffs being noted to said ruling.) The said referee, the said cause of the plaintiffs having been fully closed, and upon the motion of the defendant aforesaid, granted the said motion to dismiss said action, (an exception, at the request of said plaintiff, being noted thereto) and thereupon finds that the said plaintiffs have failed to substantiate their cause of action, and reports a judgment of dismissal of said action, in favor of said defendant, and against said plaintiffs.”

From the order the plaintiffs appeal. Two grounds of error are assigned. 1st, that this is an equitable action to .remove a cloud from the plaintiffs’ title, and may be maintained without proof of the plaintiffs’ possession. 2d, that the plaintiffs’ possession was proven. The complaint itself is a sufficient answer to the first objection. It is drawn in strict accordance with the requirements of chapter 75 of our statutes, which provides for the prosecution of an action by a party in possession of real property, for the purpose of determining adverse claims thereto, and it does not state facts sufficient to constitute an equitable cause of. action. We must therefore presume that this action was commenced under the statute, and in such action possession must be proven; in this the plaintiffs fail, for the evidence offered shows the defendant holding adverse possession under claim of right. If the plaintiffs hare a cause of action under these circumstances they may maintain ejectment, (1 Greerleaf's Cruise on Real Pr., 293 and notes; Adams on Ejectment, 125 and notes; 2 Greenleaf’s Ev., sec. 318,) which is equivalent to saying that he cannot maintain this action, for this remedy is given only to parties who, leeause they are in possession, cannot sue in ejectment. Weigher vs. Strong, 6 Minn., 179, 180.

The order appealed from is affirmed.