The payment of taxes, although evidence of a claim of title, is not evidence of adverse possession. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. 88 509-511; Dec. Dig. 8 88.*] 4. ABANDONMENT (§ 7*)-TITLE TO REAL [Ed. Note. For other cases, see Abandonment, Cent. Dig. § 11; Dec. Dig. § 7.*] Appeal from District Court, Rice County; Arthur B. Childress, Judge. Action to determine adverse claims to real Market and others. property by J. G. Krueger against Edward and defendant Edward Market appeals. ReJudgment for plaintiff, versed. John F. Byers and S. R. Child, both of Minneapolis, for appellant. E. H. Gipson, of Faribault, for respondent. Courts are inclined to place that construc- | 3. ADVERSE POSSESSION (§ 88*)-ACTS-PAYtion upon contracts of this nature which will MENT OF TAXES. give actual compensation for a breach, rather than one which creates a forfeiture. The considerations to be kept in mind in construing such contracts are well stated in Keeble v. Keeble, 85 Ala. 552, 5 South. 149. We need not discuss these in detail as applied to the instant case. It is sufficient to point out that, judging from the salary, the position plaintiff filled could not have been of great consequence to defendant. He did not come in direct contact with its customers, for he worked in the cellar, and the effect of his blends could neither have attracted nor deterred the trade. And, what perhaps weighs most, he was not hired for any definite time, nor does the evidence disclose any suggestion that his position was likely to be of any permanency. The service could be terminated at any time at the pleasure of either party. In Keeble v. Keeble, supra, the one who contended that the stipulated liquidated damages should be construed as a penalty held the position of ostensible partner and manager of the business at a large salary. It is easy to perceive how a breach of an agreement to keep sober by such an employé would result in large damages, difficult of ascertainment, to the employer. The case of Henderson v. Murphree, 109 Ala. 556, 20 South. 45, also cited by appellant, is where a person, without capital, was taken into a partnership on condition that if he got drunk the partnership terminated, and his interest therein became forfeited to the firm, and that, in such event, for the time he had been a member of the firm, stipulated wages should be paid him. Neither case is authority for holding that the parties to this action intended the deposit as anything more than security for payment of damages resulting from a breach of the condition. Order affirmed. KRUEGER v. MARKET et al. TAYLOR, C. Plaintiff brought this action to determine adverse claims to the south half of the northeast quarter of the northeast quarter of section 17 in township 110 of range 20, and other adjoining lands, all situate in the county of Rice, and alleged that he was the owner and in the actual possession of the same. Defendant interposed an answer in which he admitted plaintiff's possession, but set forth a complete chain of title to himself from the United States for the twenty-acre tract above described; and alleged that he was the owner and entitled to the possession thereof, and asked judgment that he recover such possession. Plaintiff in reply admitted defendant's chain of title, but alleged that he and his predecessors in interest had been in actual adverse possession of the land for more than 15 years before the commencement of the action. At the trial plaintiff relied solely upon the claim of adverse possession to establish his title. Defendant is the owner of the land unless his title has been divested by such adverse pos (Supreme Court of Minnesota. Jan. 23, 1914.) session. The trial court found as a fact that (Syllabus by the Court.) 1. ADVERSE POSSESSION (§ 40*)-TIME. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 148-183; Dec. Dig. 8 40.*] 2. ADVERSE POSSESSION (§ 16*) - POSSESSORY ACTS-CUTTING POLES. To constitute adverse possession, the possessory acts must appear upon the land itself and be such as to indicate an intention to appropriate it permanently. Giving permission to a third party to cut hoop poles thereon and receiving pay for such poles is not sufficient to establish such possession. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 82-89; Dec. Dig. § 16.*] plaintiff and his predecessors in interest had been in the actual adverse possession of the land for more than 15 years immediately preceding the commencement of the action, and rendered judgment decreeing that plaintiff was the owner in fee simple thereof and that defendant had no interest therein. Defendant appealed from the judgment. The sole question presented is whether the evidence is sufficient to sustain the above finding. The land lies along the river and is of little value. Some seven or eight acres are steep, rocky bluffs covered with brush and small trees not large enough for timber; and the remainder is low bottom land covered with sand deposits, intersected by bayous, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes. and frequently overflowed. It is used only as would operate as unambiguous and unfor pasturage. A tax assignment certificate for the land was issued to A. D. Keyes on October 30, 1883, and was assigned by him to E. L. Frink and others, on November 28, 1885. The claim of his associates passed to Frink, and Frink deeded to John Dungay on December 24, 1896. Dungay deeded to Frank Sweet on April 27, 1897, and Sweet deeded to Frank Tetrault on September 14, 1899, and Tetrault deeded to plaintiff on December 31, 1910. Plaintiff concedes that the tax certificate conveyed no title, but presented the certificate and the chain of conveyances thereunder to show the character and extent of his claim, and to connect his possession with that of his predecessors in interest. Plaintiff and his predecessors have paid the taxes upon the land since 1883. Sweet testified that, between April 27, 1897, when he obtained his deed, and September 14, 1899, when he conveyed to Tetrault, he built some fence and cleared a portion of the land and used it for pasture. All that he states as to when these acts took place is that they were between the dates above given. From the time that Sweet entered thereon until the commencement of the action, the land was partially inclosed and used for pasture, and firewood was occasionally taken therefrom. The action was begun in February, 1911, and to establish adverse possession for the statutory period of fifteen years, such possession must have been initiated as early as February, 1896, and more than a year before Sweet received his deed. Frink testified that he never saw the land, but that while he claimed it, he gave permission to one Gile to cut hoop poles thereon, and that Gile made some payments for such poles. He did not know when these poles were cut, nor how many were cut, and had no personal knowledge that they were cut upon this land. The testimony as to the cutting of these hoop poles is the only evidence tending to show any possessory acts on the part of any of plaintiff's predecessors prior to the entry upon the land made by Sweet; and the case is narrowed down to the question as to whether the cutting of these poles, coupled with the payment of taxes for many years, is sufficient to constitute an adverse possession which can be tacked to the adverse possession established by Sweet. [1] What constitutes adverse possession has been before this court many times and the rule is well stated as follows: "The general rules of law as to adverse possession are well settled. It must be actual, visible, and exclusive, as well as hostile. The doctrine proceeds upon the theory of the acquiescence of the true owner in his disseisin for the full statutory period; hence, the possession which affects him is what ap equivocal notice to him that some one is in possession in hostility to his title under claim of right; and, while much will depend on the nature and situation of the property and the uses to which it is adapted, yet in all cases it must be a possession which is accompanied with the real and effectual enjoyment of the property-the possession which follows the subjection of the property to the will and dominion of the claimant to the exclusion of others. The acts must be such as indicate that a permanent occupation and appropriation of the premises is intended, as distinguished from a casual trespass for some temporary purpose. And, inasmuch as it is only the possession which appears on the ground which affects the true owner, it follows that, while such acts as paying taxes or surveying lines may characterize a possession, if it exists, as hostile, yet they do not themselves constitute the possession which the law requires to toll the right of the true owner." Wood v. Springer, 45 Minn. 299, 47 N. W. 811. [2] "The acts of the person in possession must be such as to indicate that a permanent occupation and appropriation of the premises are intended, as distinguished from a casual trespass or occupancy for some temporary purpose." Glover v. Sage, 87 Minn. 526, 92 N. W. 471; Young v. Grieb, 95 Minn. 396, 104 N. W. 131; Gaston v. May, 120 Minn. 154, 138 N. W. 1025; Costello v. Edson, 44 Minn. 135, 46 N. W. 299; Wood v. Springer, 45 Minn. 299, 47 N. W. 811. [3] "The adverse possession which affects the rights of the true owner is what exists and appears on the land itself." Hence the payment of taxes, although evidence of a claim of title, is not evidence of adverse possession. Murphy v. Doyle, 37 Minn. 113, 33 N. W. 220; Wood v. Springer, 45 Minn. 299, 47 N. W. 811; Young v. Grieb, 95 Minn. 396, 104 N. W. 131. To constitute adverse possession there must, at all times, be some person against whom the owner may maintain an action to recover possession. City of St. Paul v. C., M. & St. P. Ry. Co., 45 Minn. 387, 48 N. W. 17. "The mere cutting and removal of timber, fuel or natural grass from unoccupied land have not generally, and under ordinary circumstances, been regarded as constituting adverse possession." Costello v. Edson, 44 Minn. 135, 46 N. W. 299; Bazille v. Murray, 40 Minn. 48, 41 N. W. 238; Washburn v. Cutter, 17 Minn. 361 (Gil. 335); McRoberts v. McArthur, 62 Minn. 310, 64 N. W. 903. In the present case it is obvious that the cutting of the hoop poles by Gile was not for the purpose of improving the land or preparing it for use, and did not differ in kind from the act of any trespasser who should appropriate to his own use some of the natural products growing thereon. Fur last of this cutting may have occurred many years before Sweet took possession. The evidence is wholly insufficient to establish adverse possession at any time prior to the entry upon the land made by Sweet, and, as plaintiff must show such possession for the full statutory period, he has failed to establish title. Appeal from District Court, Rock County; L. S. Nelson, Judge. Action by Joseph I. Magnuson and others against Robert Burgess and others. From an order denying defendants a new trial, after verdict for plaintiffs, defendants appeal. Affirmed. Barnett & Richardson, of Fargo, N. D., for appellants. E. H. Canfield, of Luverne, for respondents. BROWN, C. J. Appeal from an order denying a new trial after verdict for plaintiffs. [4] The suggestion is made that, as defendant had failed to pay taxes for nearly 30 years, he had abandoned the land, and upon that ground should be barred from now asserting title thereto. A perfect legal title to real estate may be divested by adverse possession under and by virtue of the statute of limitations, but is never lost by abandonThe short facts are as follows: In Februment. Smith v. Glover, 50 Minn. 58, 75, 52 ary, 1906, defendants sold and delivered to N. W. 210, 912; Nauer v. Benham, 45 Minn. plaintiffs, for the consideration of $1,200, a 252, 47 N. W. 796; Mayor, etc., of Philadel- horse represented to be a registered fullphia v. Riddle, 25 Pa. 259; Kreamer v. Vo-blood imported Belgian stallion, named “Juneida, 213 Pa. 74, 62 Atl. 518; East Ten- piter d'Orm." The horse was purchased nessee Iron & Coal Co. v. Wiggin, 68 Fed. 446, 15 C. C. A. 510; Tennessee Oil, etc., Co. v. Brown, 131 Fed. 696, 699, 65 C. C. A. 524; Barrett v. Kansas, etc., Coal Co., 70 Kan. 649, 79 Pac. 150; Sharkey v. Candiani, 48 Or. 112, 85 Pac. 219, 7 L. R. A. (N. S.) 791; Robie v. Sedgwick, 35 Barb. (N. Y.) 319; Calloway v. Sanford (Tenn. Ch. App.) 35 S. W. 776, 778; 23 Am. & Eng. Enc. 940. Judgment reversed. URE OF DAMAGES. Where he elects to affirm the contract by retaining the property, the measure of his damages for the fraud is the difference between the actual value of the property and the price paid, together with such special damage as he may have suffered in consequence of the fraud. [Ed. Note. For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dec. Dig. § 59.*] 3. FRAUD (8 60*)-DAMAGES-DEPRECIATION OF USE. Even though the property be sold for a particular use, the defrauded party, where he affirms the contract, can have no recovery for depreciation in the value of the use of the property accruing after discovery of the fraud. [Ed. Note.-For other cases, see Fraud, Cent. Dig. § 65; Dec. Dig. § 60.*] 4. FRAUD (§§ 49, 52*)-ACTION FOR DAMAGES -EVIDENCE-VERDICT. Evidence held to support the verdict, and that there were no errors in the exclusion or admission of evidence. [Ed. Note.-For other cases, see Fraud, Cent. Dig. 88 44, 45, 48; Dec. Dig. §§ 49, 52.*] by plaintiffs for breeding purposes. At the time of the sale defendants delivered to plaintiffs certain pedigree papers and certifi cates, in and by which it was certified by an American horse breeders' association, and by a like Belgian association, that the horse was Jupiter d'Orm, was foaled in Belgium, and imported to this country by defendants. Plaintiffs thereafter made use of the horse for breeding purposes. and in the belief that he was the animal represented, and charged compensation for his services accordingly. They made application to register the horse in the books of the Minnesota Breeders' Association, an organization authorized by chapter 436, Laws 1907 (Gen. St. 1913, § 5071), and the application was refused, for the reason, as we understand the record, that the certificates of pedigree delivered to plaintiffs at the time of the sale, and which were presented to the association in connecto warrant the conclusion that plaintiffs' tion with the application, were not sufficient about this time, and by refusal of this board horse was the one therein described. to register the horse, plaintiffs discovered, as they now claim, that the horse delivered to them was not the one bargained for, was not Jupiter d'Orm, or an imported animal; on the contrary, was what is known in the horse market as a grade stallion. Plaintiff's did not, at the time of making this discovery, or at any subsequent time, offer to rescind the contract by returning the horse to defendants, or otherwise, but continued to make use of him for the purposes for which he was purchased until April, 1912, when this action was commenced. The complaint alleges that at the time of the sale and as a part of the transaction defendants represented that the horse was a full-blood imported registered as such in the books of an AmeriBelgian named Jupiter d'Orm, and duly can association of imported Belgian horses, and also by a similar association in Belgium, certificates from which associations were de At For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep's Indexes livered with the horse. The complaint fur- | tended to show that they were thoroughly ther alleges that the representations so made familiar with this horse and by their eviwere false and fraudulent and known to be dence traced him from Belgium to this counso by defendants; that the certificates of try and into the possession of plaintiffs. pedigree so delivered were spurious and did | So that if the horse Jupiter d'Orm was not not belong to the horse delivered to plain- in fact delivered to plaintiffs, but some other tiffs. The complaint also alleges that proper horse, the falsity of the representations apcertificates of pedigree are essential to the pears, entitling plaintiffs to a recovery of value of such horses, and that, by reason of such damages as they suffered in consequence the spurious character of the certificates de- thereof. The jury found that the particular livered to plaintiffs, they were specially dam- horse was not delivered to plaintiffs, and deaged in the sum of $800; and, also, that up- fendants' first contention on this appeal is on discovering the fraud plaintiffs were com- that the verdict is not sustained by the evipelled to reduce the charge for the services dence. We have given this contention due of the horse to that usually charged for consideration, examined the record with grade animals, in consequence of which care, with the result that in our opinion the plaintiffs were further damaged during the question was properly submittted to the years 1909, 1910, and 1911, in the sum of jury. The evidence does not perhaps leave $800; the horse is alleged to be of no greater the question entirely free from doubt; but, value than $600. The answer admitted the since the trial court has approved the versale of the horse as alleged in the complaint, dict, we are not justified, within the rule and that the horse was represented as an guiding us in such cases, in ordering a new imported Belgian, known as Jupiter d'Orm, trial upon this ground. We do not attempt to discuss the evidence for the purpose of demonstrating the correctness of the verdict. This we are not required to do, and in the instant case it would serve no use and alleged that the representations were in all respects true, and that defendants in fact delivered the horse described in the certificates of pedigree to plaintiffs. Plaintiffs had a verdict for $1,200, the full amount of the purchase price of the horse, though the evidence tended to show that he was of the value, as a grade stallion, of the sum of $400; the complainant alleged that he was worth no more than $600. The amount of the verdict is explained by the fact that the court permitted the jury to include in their award of damages the loss claimed by plaintiffs to have been suffered after discovery of the fraud by the reduction in the service charges of the horse. Defendants moved for a new trial upon various grounds, and the motion was in all things denied. The assignments of error present three principal questions, namely: (1) Whether the evidence supports the verdict; (2) whether the court erred in the admission of evidence; and (3) whether the court erred in permitting the jury to include in plaintiffs' damages the alleged loss in service charges after discovery of the fraud. ful purpose. We are content with the statement that the record has been fully considered, with the result stated. [2] 2. Several assignments challenge the rulings of the court upon the admission and exclusion of evidence. Though some of the rulings of the court may have been erroneous, and some of the evidence excluded might properly have been admitted, and some that was admitted might have been excluded, without error, we find no error of a character, to justify a reversal of the case, except as respects the measure of damages. Assignments 1 and 2 have reference to the admission of evidence showing the representations made by defendants at the time of the sale; the contention being that such evidence tended to enlarge the representations contained in the written bill of sale and guaranty, and was therefore inadmissible. There was no error in this ruling. As we 1. The issues presented by the pleadings read the pleadings, there was no substantial narrowed down at the trial to the question controversy about the representations, which whether plaintiffs received the horse Jupiter were to the effect that the horse sold and ded'Orm. The evidence leaves no fair doubt livered to plaintiffs was the horse Jupiter of the fact that Jupiter d'Orm was a full- d'Orm. And the trial reduced this branch of blood Belgian stallion, and that he was the case to a question of identity of the imported from Belgium by defendants in horse. Plaintiffs produced witnesses who August, 1905. Nor was there any issue un- gave evidence of the value of the horse der the pleadings concerning the representa- received by plaintiffs, and of the admission tions made by defendants at the time of of this testimony defendants complain; the the sale, though their truth or falsity was in ground of objection being that the witnesses issue. The principal question litigated was were not shown to be competent to testify whether the particular horse was the one upon the subject. This question was addelivered to plaintiffs. Defendants insisted dressed largely to the discretion of the trial that the identical horse was delivered, while court, in the exercise of which we discover plaintiffs contended to the contrary. There no abuse. Defendants offered to show by was no claim by defendants that a mistake the secretary of the American Breeders' Ashad been made and the wrong horse deliv-sociation the identity of the description of ered. On the contrary, the evidence offered the horse Jupiter d'Orm as contained in the foreign certificate of pedigree and as contained in the certificate issued by the association of which the witness was secretary. There was no error in the rejection of this testimony. It was immaterial. There was no controversy but that Jupiter d'Orm was a Belgian stallion, and it may be conceded that the particular horse was similarly described in both certificates, though there may have been some controversy upon the question. But the evidence offered would have no tendency to show that the horse so described was the animal delivered to plaintiffs. The same may be said of the exclusion of Exhibits 7, 8, 9, and 10, which are corroborative and tended to substantiate the claim that Jupiter d'Orm had been imported from Belgium by defendants. The examination of witness Montgomery, secretary of the Minnesota Breeders' Association, may have in some measure encroached upon the rule of hearsay evidence, but not to such an extent that it may be said to have substantially prejudiced defendants' cause. The witness did not undertake to say whether plaintiffs received the horse they purchased. His testimony related almost wholly to an explanation why his association refused registration to the horse Jupiter d'Orm, and that appears to have been for the reason that the pedigree certificates given plaintiffs had been altered and changed to such an extent as to leave the verity of the certificates in doubt. [3] 3. The other assignments have reference to the damages awarded plaintiffs by the jury, and present a meritorious question. Plaintiffs were permitted to recover, in addition to the difference in value of the horse, the alleged loss in service charges incurred after the discovery of the fraud and during the years 1909, 1910, and 1911. In this we hold that the court below was in error; the alleged loss in service charges should have been excluded. The law is well settled that in the case of a breach of an ordinary warranty of the condition or quality of personal property, where the purchaser retains the property, the gen'eral rule of damages is the difference in value of the property in the condition or of the character represented and its value in fact. 3 Dunnell's Dig. 8624. While in the case of fraud and deceit, where the property is not returned, the rule is the difference between the actual value and the price paid, and such special damages as resulted approximately from the fraud. Marsh v. Webber, 16 Minn. 418 (Gil. 375); 1 Notes to Minn. Cases, 680; Stickney v. Jordan, 47 Minn. 262, 49 N. W. 980; Redding v. Godwin, 44 Minn. 355, 46 N. W. 563. In cases of this character the special damages are necessarily limited to such as occurred prior to a discovery of the fraud, and of the fact that the property was not of the character represented or suited to the purposes intended. For it is clear that the defrauded party, after discovering the fraud, cannot retain the property and claim special injury thereafter. In the case at bar the horse was purchased for breeding purposes, and he was represented as a Belgian stallion. Plaintiffs discovered that the horse was not as represented and that they had been defrauded, early in the year 1909, and thereafter made use of the animal as a grade stallion, at reduced service charges. There is no claim that plaintiffs suffered any loss in consequence of this fact prior to 1909, and we have been cited to no case holding that in such a state of facts recovery may be had for losses of this kind occurring after notice of the facts. [1] Upon a discovery of the fraud in such cases the defrauded party has the election of one of two remedies, namely: (1) Rescind the contract by returning or offering to return the property, and recover back the purchase price, together with such special damages as he may be entitled to; and (2) affirm the contract by retaining the property, and claiming the difference in value, with special affirm the contract, the property becomes abdamages, if any. and the seller is no longer liable for injuries solutely and fully vested in the purchaser, suffered from its use, or its failure to correspond with the representations as to character or usefulness. In other words, the purchaser in such case elects to take the property with knowledge of its actual condition, and to reimbursement by a recovery of the difference in value, and such special damage as may have accrued up to the date of making the election. Mecham, Sales, 1843; 24 Am. & Eng. Law, 1157 et seq.; Haven v. Neal, 43 Minn. 315, 45 N. W. 612; Mlnazek v. Libera, 83 Minn. 288, 86 N. W. 100. After discovery of the fraud the defrauded party has a reasonable time in which to make his election, and when made is final, and ends the relation between the parties as to the future, in respect to the particular transaction. Peak v. Frost, 162 Mass. 298, 38 N. E. 518. In the case at bar plaintiffs elected to affirm the contract, that is, there is no claim that they attempted to rescind the same upon the discovery of the fraud, and they still hold the horse. They cannot therefore recover special damages subsequently accruing, and the court was in error in its charge to the jury upon the question. Where the election is to [4] 4. But we deem it unnecessary to order a new trial for this error, for a reduction of the verdict may be ordered which will end the litigation. The complaint alleged that the horse was of no greater value than $600, and the evidence tended to show that he was worth no more than $400. Just what value the jury placed upon the horse is, of course, not made clear by the record; but it may be assumed that they adopted the value admitted by the complaint, and that the balance of the verdict of $1,200 represents the loss suffered after discovery of the fraud. Such |