Blomberg v. Montgomery

CANTY, J. Plaintiff brought an action for the partition of the quarter section of land here in question, and in his complaint alleges that he is the owner of two-fifths of said land, that defendants are husband and [150] wife, that defendant Sarah A. Montgomery is the owner of the other three-fifths of the land, and that defendant Thomas Montgomery claims in his own right some interest in the land, which claim is unfounded. Defendant Thomas answered, and alleged that he is the owner in fee simple of the whole of the land. On the trial before the court without a jury, the court found that plaintiff is the owner of an undivided two-fifths of the land, and defendant Sarah of the other three-fifths of the same, and that defendant Thomas has in his own right no interest in the land. From an order denying a new trial, defendant Thomas appeals. 1. Appellant claims title by adverse possession. The United States government issued a patent for the land to “the heirs of Isabella Morrison, deceased,” on June 1, 1861. In 1868 one Mayo and wife made a warranty deed of the land to appellant, which deed was duly recorded, but neither Mayo nor wife appear ever to have had any interest in or title to the land. The evidence tends to prove that, claiming under this deed, appellant had about ten acres of the land broken in 1880; that during the next year this ten acres was cultivated by his tenant, more land was broken, some of the grass cut, and in the same manner the amount under cultivation was increased each year until in 1884 about 40 acres were under cultivation. No buildings have been put on the land, no one has ever resided upon it, and it has never been fenced, or at most only partly fenced. It may be conceded that, if the evidence was conclusive that plaintiff has ever since continued in the hostile and exclusive possession of the land under the color of title furnished him by the Mayo deed, he would now be the sole owner of the whole quarter section, as this action was not commenced for more than fifteen years after he took possession in 1880. But the evidence is not conclusive that he has remained in possession. On the contrary, it tends to prove that in the year 1883, or shortly thereafter, he abandoned his possession to his wife, who had become the owner of three-fifths of the land as aforesaid, and that since that time she, and not he, has been in possession. There were five heirs of Isabella Morrison, and it is conceded that each of them took an undivided one-fifth of the land under the government patent. [151] In 1878 appellant commenced an action against these five heirs to determine his title to the land, and but three of the fire answered. The three so answering were adjudged to be the owners of the undivided three-fifths of the land, and appellant was given no relief as against the other two heirs. Thereafter, in 1883,’ he purchased the interests of the three heirs who had so answered, and took conveyances from them to his wife, but paid the purchase price with his own money. He has paid the taxes ever since 1878, and made the contracts with the different tenants who have occupied the premises since 1880. But since 1882 the land has been assessed for taxation in the name of his wife, and the court was warranted in finding that he paid the taxes and managed the property for his wife. There was evidence tending to prove that off and on, since 1884, appellant had repeatedly stated that the land belonged to his wife; also, in January, 1895, in a letter written by him to plaintiff, he stated that five-sixths of the land belonged to his wife, and that the other one-sixth “can never be disturbed.” Under this evidence the trial court was not bound to find that appellant has during all these years continued in possession, but, on the contrary, was warranted in finding that he abandoned the possession to his wife, and was acting merely as her agent in what he did in looking after the property. 2. Plaintiff claims to have succeeded to the rights of Peter Morrison and Catherine Conwell, two of the five heirs of Isabella Morrison. On the trial the parties stipulated that certain persons, named were all the heirs of Isabella Morrison. No question is made but that Peter Morrison, one of these, has conveyed his rights to plaintiff. Catherine Conwell, another of these, had died, leaving seven heirs, whose names are included in the stipulation. Plaintiff claims to have obtained conveyances from all of these. One of these is Isabella A. Dern. The grantor in the deed is Isabella Dern. Another is Myrtie Thorp. The grantor in the deed is Myrtie B. Thorp. Another is George B. Conwell, Sr., and the name is so written in the body of the deed, but he signed it “G. B. Conwell, Sr.” It is contended by appellant that it is not presumed that these deeds were made by said heirs, and that there is no proof of the identity of the grantors, or that they are the heirs above mentioned; citing Ambs v. Chicago, 44 Minn. 266, 46 N. W. 321. [152] The deed signed by Isabella Dern and Myrtie B. Thorp recites that they are heirs of Catherine Gonwell, deceased, who was an heir of Isabella Morrison, deceased; and in the certificate of acknowledgment the notary certifies that they are known to him to be the same persons described in, and who executed, the foregoing deed. This is prima facie evidence that they are the persons thus described. In the certificate of acknowledgment to the deed of George B. Conwell, Sr., it is also certified that he is known to the notary to be the same person described in, and who acknowledged, the deed. This sufficiently identifies him, also. See Rodes v. St. Anthony Co., 19 Minn. 370, 52 N. W. 27. This disposes of the case, and the order appealed from is affirmed.