In Re Board of Christian Service to Register Title , 183 Minn. 485 ( 1931 )

¹ Reported in 237 N.W. 181. On an application for registration a controversy arose over the title to ten acres of land which in 1872 was deeded by Swan Olson and wife to three named persons, "trustees of the Swedish Evangelical Lutheran Church of Vasa, Goodhue County, Minn. and their successors in office." At that time the Reverend E. Norelius was pastor of the church, and he established an orphans' home upon these premises, which were in the vicinity of the church. Norellus never acquired any paper title to the premises in his own name, but in 1875, by a letter addressed to the Minnesota Lutheran Conference of the Augustana Synod of North America, of which the Vasa church was a member, he offered "to the Conference to take over the children's home, as it stands, as its own and to give it such development as would be desirable." The conference accepted the offer and organized a corporation under the name of the Society of Mercy of the Swedish Evangelical Lutheran Church of Minnesota to operate the home. The society took possession of the ten acres here in controversy and conducted the home until in 1926 and 1927 it deeded the premises to the applicant, which was a corporation likewise organized by the conference to take charge of all its charitable work. In 1926 the applicant ceased to conduct the home on the premises and transferred it to the vicinity of Red Wing. Thereupon the applicant sought registration of title to these premises and certain adjoining lands, and the Vasa church came in and disputed the title to the land covered by the deed from Olson. The trial court found in favor of the Vasa church, and the applicant has appealed.

The applicant contends that the deed from Olson to the trustees and their successors in office was in trust for Norellus and thereafter for the Society of Mercy and finally for the applicant.

1. We search the record in vain for evidence of such a trust. The trial court found against its existence and could not well have found otherwise. In order to upset the court's finding we should have to find the evidence conclusive in favor of the trust. We find no support for appellant's contention. Even if Norelius paid out of his own pocket the original $150 of purchase price, as appellant contends, he took the title in the trustees and their successors without qualification. No trust in favor of Norelius would arise. G. S. 1923 (2 Mason, 1927) § 8086. The other circumstances disclosed by the record are insufficient evidence of trust. They indicate permissive use but not a trust and are more fully discussed under the next question presented.

2. Applicant also contends that its predecessors in interest acquired a title by adverse possession. The trial court found against appellant on this contention, and we think rightly. The Vasa church was a member of the conference, and the Society of Mercy and the applicant were, on the record before us, mere instrumentalities of the conference to carry on a charitable work, in which the Vasa church was as much or more interested than any other member church. In a very definite sense the society and the applicant were performing a function for the Vasa church, and certainly no agent could under these circumstances acquire title by adverse possession against its principal. The trial court has found that the possession of the applicant and its predecessors was with the permission of the Vasa church, and we find no evidence whatever that it was hostile. Certainly in its inception the possession was permissive. To change such possession to adverse possession there must be some circumstances or open declaration of intent indicating an intent to claim the title in hostility to the true owner. We find no such circumstances or declaration until the removal of the home from these premises by the applicant in 1926. As well said by Mr. Justice Holt in Johnson v. Hegland,175 Minn. 592, 596, 222 N.W. 272, 273, in quoting from 19 C.J. 889:

"Nevertheless, to transform a permissive use into an adverse one there must be a distinct and positive assertion of a right hostile to the rights of the owner, and such assertion must be brought to his attention, and the use continued for the full prescriptive period under the assertion of right; and the rule is not affected by the fact that the privilege is claimed by successors in interest of the party to whom the permissive use was originally given."

It is not to be overlooked that the relationship between these parties was very close and that they were co-operating in a common charitable purpose, in the success of which they were much interested and to which they were all devoted. Under such circumstances we think the trial court was amply justified in finding against an adverse possession. It would have been difficult to sustain a contrary finding. Omodt v. C. M. St. P. Ry. Co. 106 Minn. 205, 118 N.W. 798; Collins v. Colleran, 86 Minn. 199, 204,90 N.W. 364.

Appellant makes the point that a conversation had by one of the officers of the Society of Mercy with Norelius, now deceased, was improperly excluded. In the state of the record the conversation was not competent to bind the respondent, and consequently we find no error.

The order appealed from is affirmed.