Cheever v. Converse

Mitchell, J. Appellant’s contention is that this was an action “to foreclose the equities of the trust deed” from him to Richardson, and that respondents could not assert or litigate in this action any claim of title to the property in controversy other than one under or through that deed, and that, therefore, the court erred in the admission of evidence of title in respondents through other sources, such as the mortgage executed by appellant, or judgments renderéd against him, or sales for taxes. We are unable to concur in this view of the case. It is in no sense analogous to a suit to foreclose a mortgage, and hence Banning v. Bradford, 21 Minn. 308, is not in point. While the grounds on which appellant claimed title were that the deed to Richardson was merely in trust, and that the trust had been fully performed and terminated, yet the object of the action, and the relief sought, was that the title to the lands be adjudged in him. The answer of respondents alleged title, ownership, and possession in themselves as the assigns of Pinney, not merely under the deed from the Richardson heirs to Pinney, but also under various other deeds, from 182 other sources, executed to Pinney; and they asked, as affirmative relief, that the title be adjudged in them. The action was therefore one to determine the title, and we think the respondents-had the right to allege and prove any title, from any source, which they had to the property. The parties being before the court, and their respective claims of title sufficiently pleaded, there was no reason why the whole question should not be fully litigated and finally determined in this action. 2. We think the will of Ovid Pinney gave his executors power to sell and convey real estate; hence the administrator with the will annexed had the same power. Gen. St. 1878, c. 50, § 8. Consequently there was no error in the admission of the deed of Winthrop Young, administrator with the will annexed. Judgment affirmed.