EMMA L. WALLACE v. WILLIAM R. SACHE

Minnesota Supreme Court1908-11-20No. Nos. 15,850—(202)

106 Minn. 123

Summary · law.co

Holding. The trial court's finding that the notice of expiration was not served as the statute requires upon the person in actual possession of the land was supported by the evidence, and the judgment is affirmed.

Emma Wallace brought an action to establish her title to real property against William Sache, who claimed ownership through a tax sale. The central issue was whether Sache properly served notice of the expiration of the redemption period as required by statute. The statute mandated that if the person named in the notice could not be found in the county, the notice had to be served upon anyone in actual possession of the land.

At trial, evidence showed that Wallace had grown and harvested a potato crop on the property shortly before the notice was issued. Although the potatoes had been removed, visible ridges from the digging, potato tops, and weeds and grass remained on the uninclosed lot. The trial court found that Sache failed to serve the notice on the person in actual possession. Sache argued these remaining traces proved only that a crop had been grown at some earlier point and did not establish present possession by any identifiable person.

The appellate court disagreed, holding that actual possession does not require fencing or a house on the property. The visible evidence of ordinary use and the taking of the ordinary profits of the land—here, the cultivation and harvest of potatoes—constitutes actual possession sufficient to trigger the statutory requirement for service. Because proper notice was not served on the actual possessor, the right to redeem the tax sale property remained intact.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether visible evidence of crop cultivation and harvest constitutes 'actual possession' for purposes of statutory notice requirements
Whether actual possession requires formal inclosure or fencing of the property
Whether ordinary use and extraction of the ordinary profits of land satisfy the definition of actual possession

Procedural posture

The trial court entered judgment for Wallace on her suit to quiet title, finding that Sache failed to properly serve notice of redemption expiration on the person in actual possession, and Sache appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

JAGGARD, J.

Plaintiff instituted this action, for the purpose of quieting her record title to the land described, against the defendant, who claimed title under tax proceedings. At the trial no attack ■ was made upon the tax judgment, the tax certificate, or the form of the notice affecting the expiration of the redemption. The trial court held that the notice of expiration was not served as the statute requires upon the person in actual possession of the land when the notice was issued and served. The language of the part of the statute here involved is: “If the person named in such notice cannot be foundin the coun ty and there be any person in the actual possession of the land in such notice described, the same shall in like manner be served upon him.” [Eaws 1902, p. 26, c. 2, § 47.] This provision is, of course, mandatory.

One question presented on appeal is whether the testimony, within the familiar rule on that subject, reasonably tended to support this finding of the trial court: Some time prior to October 14, 1904, the “crop of potatoes had been harvested and removed from said premises. On that date there was no inclosure of any sort around said lot, which was not in any manner inclosed, either by a fence or otherwise, but on said date there was plainly visible ridges of earth on said lot from which the crop of potatoes had been dug, and old potato tops and some small potatoes were then lying upon the surface of the ground. That upon the surface of said lot were then more or less weeds and grass, which had grown up upon the same between the potato hills during the season said crop of potatoes had been grown and harvested by the plaintiff as aforesaid.” The testimony of four witnesses justified this finding. The position of the defendant, however, is that the potato tops and ridges of earth indicated at best that a crop of potatoes had been raised upon the lot earlier in the year, and that the facts found did not indicate what person raised the crop, nor what particular individual had been in possession of the lot while the crop was being raised. Every evidence of “actual possession” had ceased. This position, we think, is not sound.

The cases in which the exact meaning of the term “actual possession” is considered are to be found principally in the law of adverse possession. “Constructive possession” is a fiction of law. “Actual possession” is a tangible fact. “Actual possession” means the corporeal detention of the property when used in relation to adverse possession. Carey v. Cagney, 109 La. 77, 33 South. 89; Cutting v. Patterson, 82 Minn. 375, 380, 85 N. W. 172; Churchill v. Onderdonk, 59 N. Y. 134, 136; Cleveland v. Crawford, 7 Hun, 616, 619; Newcome v. Crews, 98 Ky. 339, 32 S. W. 947; Lillianskyoldt v. Goss, 2 Utah, 292, 297. Cf. Moulton v. Sidle (C. C.) 52 Fed. 616; Green v. Cumberland, 110 Tenn. 35, 72 S. W. 460.

The actual fencing and inclosing of a tract are not necessary to constitute adverse possession. Ordinary use and the taking of the ordinary profits of the land will suffice. 1 Am. & Eng. Enc. (2d Ed.) 827, and cases cited in note 1. Id. 828. And see Cutting v. Patterson, 82 Minn. 375, 85 N. W. 172. It is no answer at all to say that such possession did not indicate “what particular individual had been in possession of the lot while the crop was being raised.” This would have been equally true if the lot had been fenced and also had upon it a vacant house. The improvement was notice of possession. It was incumbent upon the defendant to find the person in possession.

It follows that the right to redeem the property had not been eliminated. The discussion of the other questions raised, in this view, would be a work of supererogation.

Affirmed.