Brown v. Jacobsen Land & Cattle Co.
297 Neb. 541
| Neb. | 2017Background
- Jacobsen owned land in Banner County; approximately 80 acres of its parcel had been fenced with adjacent land owned by Brown (the disputed property).
- Brown filed a quiet title action asserting adverse possession and recorded a lis pendens before Jacobsen closed a sale of the parcel to the Nebraska Game and Parks Commission (the State).
- Jacobsen conveyed the property to the State by warranty deed after Brown filed and recorded the lis pendens; the State then sought and was granted leave to intervene in Brown’s quiet title action over Brown’s objection.
- The district court found (on partial summary judgment) the lis pendens made the State a subsequent purchaser and limited the State’s role to the rights of a subsequent purchaser, precluding the State from presenting evidence on adverse possession at trial.
- Jacobsen withdrew and did not participate at trial; the court quieted title in Brown. The State appealed, arguing the court erred in restricting the intervenor’s ability to defend and offer evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State is a "subsequent purchaser" under § 25-531 | Brown: Lis pendens was recorded properly; any later acquirer is a subsequent purchaser bound by proceedings. | State: challenges characterization or seeks cancellation of lis pendens (alternative). | Court: State is a subsequent purchaser; record shows deed executed and recorded after lis pendens, so § 25-531 applies. |
| Whether the State could intervene | State: had an interest (record owner/equitable title at closing) and could intervene to protect that interest. | Brown: intervention fine but rights should be limited to those of a subsequent purchaser, not full defense rights. | Court below allowed intervention; Supreme Court accepted intervention was proper. |
| Whether a subsequent purchaser-intervenor may present evidence to defeat adverse possession | Brown: lis pendens status limits a subsequent purchaser so it cannot "stand in the shoes" of original defendant to contest adverse possession. | State: as intervenor and party, it has rights to engage in discovery and present evidence to defend its interest. | Supreme Court: lis pendens does not strip intervenor of party rights; intervenor/subsequent purchaser may fully defend and offer evidence. Exclusion of State’s evidence was reversible error. |
| Whether the lis pendens should have been canceled / progression order modified | State: alternatively argued court should have canceled lis pendens or allowed more time for discovery after Jacobsen withdrew. | Brown: did not move to cancel; opposed modifying progression. | Court: State never moved to cancel lis pendens in trial court — appellate court will not consider; trial court did not abuse discretion on progression order claim as decided below. |
Key Cases Cited
- Hadley v. Corey, 137 Neb. 204 (1939) (describes lis pendens effect that purchasers during litigation take subject to judgment)
- Munger v. Beard & Bro., 79 Neb. 764 (1907) (discusses that lis pendens statute does not relieve plaintiff of duty to make known parties part of action and that known purchasers should be made parties)
- Kelliher v. Soundy, 288 Neb. 898 (2014) (addresses lis pendens statutory interpretation and notice effect)
- Poullos v. Pine Crest Homes, 293 Neb. 115 (2016) (quiet title actions are equitable; appellate de novo review in equity)
- Kirchner v. Gast, 169 Neb. 404 (1959) (one who intervenes under § 25-328 becomes a party with rights of a party)
- Merrill v. Wright, 65 Neb. 794 (1902) (early Nebraska explanation of lis pendens purpose and effect)