St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1888-02-14
MUCH LAND INVOLVED.
The Supreme Court Reverses a
Decision Affecting Property in
North Minneapolis.


Decision Affecting Property in
North Minneapolis.
The supreme court yesterday handed
down an important decision in ease
involving the title to certain real estate
in North Minneapolis. Alexander
Moore owned l20 acres of land, includ-
ing the lot involved, and in December,
1855. executed to Joseph Hall, of New
York state. 4 mortgage on it to secure
the payment OF S277-37, with interest.
In 1856 Moore conveyed the land to
Jacob B. BauSman and Zenas Z. Brit
ton by warranty deed, the covenant re-
Specting the membranes containing
an express exception as to the Hall
mortgage. In June, 1865, Hall died. and
in 1870 proceedings were begun, the
mortgage fOreclOSed and the land con-
veyed to r. B. Galusha, Halls attorney,
and he conveyed it to Mr.. Taft in 1873.
1t was divided into town lots and sold
10 different parties. The original heirs
claimed that the foreclosure of the
mortgage was illegal. and brought snit
for the recovery of the land. At the
trial last term the case was decided in
their favor, but the case was appealed,
which resulted yesterday in the rever
sal of the decision, as follows:
Mercy Z. BauSman ct al, respondents,
VS.. Austin f. Kelly, appellant.
SyllabuS-A mortgage being dead, a
foreclosure by advertisement upon
notice Of sale purpOrting to be given by
authority of the mortgageor is void. Nor
could it be caused by proof that in fact
the notice was given by authority of an
other person. The mere possession of
note and mortgage securing the same
a a ND
mOrtgagee), to whom the note was pay
able, the same being unindOrsed, is not
evidence of title in such person. An
action to remove cloud upon title may
be maintained by one out of possession
against one in possession of the land,
following former decisions. Chapter
112, general laws 1883, prescribing limi-
tation upon the rights to avoid Statu-
tory foreclosure of a mortgage, is inap-
plicable to foreclosure, which was void
by reason of total absence of authority
TO exercise the power Of sale, as where
a stranger has assumed to forecloSe. An
action to remove a cloud upon title
held and barred by the general statute
OF limitations as an action for relief
OH the ground of fraud. In such
an action, although the plaintiff has
the legal title, the court will not
grant equitable relief without regard
ing the equitable claims of the defend
ant. A defendant who has purchased
the land in good faith for value under
color of title and without notice, and
who, with his grantOrs. had been in
possession averSe to the real owner for
many years. is entitled to the equitable
protection OF the court, unless the
plaintiff had been without fault. To
constitute laches there must have been
knowledge actual or imputable of the
facts which should have prompted &C
ton, or if there was ignorance that must
have been without just excuse. For an
owner of land, knowing that his title
appears of record to have been Invested
to remain quieScent many years until
the equities of bona fide purchasers of
the record title have interviewed, is
lacheS which court of equity will re-
gard. From long continued adverse
possession, knowledge on the part of
the owner may be inferred, and since
this should prompt to inquiry the source
of such adverse claim will also be pre-
Sumed to have been known. that ap-
pearing upon the records as an appar-
emily valid title. Ii the real cause for
unreasonable delay in seeking such re-
lief has sprung not from eXcusable igno-
rance of the facts, but from purpose to
abandon the land to incumbrancerS, that
would constitute laches as respects in
nocent purchasers. New trial ordered.
DICKINSON, J.
OTHER OPINIONS.
The follwing decision was rendered
In case that grew out of the same
transaction:
John b. Sanborn, respondent, VS.. The
Trustees of Hamline University, ap-
pellantS.
Syllabus-In an action to remove
move a cloud, persons claiming other
lands upon the title of which the same
cloud rests, need not be made parties.
A complaint in such an action is not
demurrable. although it shows that fit
teen years have elapsed since the i'm
position of the cloud, no other facts ap-
pearing to charge the plaintiff with
lacheS. Order affirmed.
DICKINSON, j.
Edward Byrne, respondent. VS.. The
Minneapolis & st. Louis Railway Com
pany, appellant.
Syllabus-In AN action for dam
ages from permanent obstruction
OF a water course and the con-
Sequent flooding of the plaintiffs land
a former recovery for the same cause,
for damages suffered prior to the CON-
lnencement of this action, is admissible
in evidence upon the same issue as
those involved i'm the former action. In
general proper measure of damages
for the destruction or loss of growing
crops-annual crop of grass-is the
value of the same, and not necessarily
the rental value of the land The water
which i'll times of ordinary high water
Oyerflows the banks of a stream, and l.
accustomed to flow down over the ada
cent low lands in defined stream, is
subject TO the law relating to water
courses rather than to that of surface
water. Il recovery for nuisance does
not bar a subsequent recovery for the
continuance Of the same nuisance. Or
der refusing new trial is affirmed.
DICKINSON. J.
New COrpOrati0nS