Brown v. Jacobsen Land & Cattle Co.
297 Neb. 541
| Neb. | 2017Background
- Jacobsen owned land in Banner County; approximately 80 acres of that land was fenced with adjacent land owned by Terry P. Brown (disputed property).
- Brown filed a quiet title action alleging adverse possession and recorded a lis pendens before Jacobsen closed a sale of the disputed property to the Nebraska Game and Parks Commission (the State).
- The warranty deed from Jacobsen to the State was executed after the lis pendens was recorded; the State thus became a subsequent purchaser under § 25-531.
- The State moved to intervene; the district court permitted intervention but held the State’s role was limited by lis pendens and disallowed the State from presenting evidence at trial on the adverse possession claim.
- Jacobsen withdrew and did not defend; trial proceeded with Brown presenting evidence unopposed, and the court quieted title to Brown. The State appealed, arguing it was wrongfully precluded from defending.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State was a "subsequent purchaser" under the lis pendens statute | Brown: lis pendens was validly recorded before the State's deed; State is a subsequent purchaser bound by the action | State: disputes characterization or alternatively argued lis pendens should be canceled | Held: State was a subsequent purchaser; record shows lis pendens preceded the deed, so § 25-531 applies |
| Whether the State could intervene | State: had equitable/record interest and would be harmed if excluded; sought to intervene to protect its interest | Brown: intervention permitted but rights should be limited by lis pendens so State cannot contest adverse possession | Held: intervention was permitted; State became a party with rights of a party |
| Whether a subsequent purchaser-intervenor may present evidence to defend against adverse possession | Brown: lis pendens limits subsequent purchaser to whatever title existed at closing and thus precludes defending against plaintiff’s preexisting adverse possession claim | State: as intervenor and party, it retained right to participate fully (discovery, evidence, cross-examination) despite being a subsequent purchaser | Held: lis pendens does not strip an intervenor of procedural rights; the State should have been allowed to offer evidence and question witnesses |
| Whether exclusion of the State’s evidence was harmless error | Brown: trial court’s exclusion appropriate under lis pendens; judgment should stand | State: exclusion prejudiced its substantial rights by preventing defense after original defendant withdrew | Held: exclusion was reversible; error unfairly prejudiced the State and requires a new trial |
Key Cases Cited
- Kelliher v. Soundy, 288 Neb. 898 (Neb.) (statutory interpretation of lis pendens is a question of law)
- Hadley v. Corey, 137 Neb. 204 (Neb.) (a subsequent purchaser who becomes party may question plaintiff’s right to recover like original defendant)
- Munger v. Beard & Bro., 79 Neb. 764 (Neb.) (lis pendens does not relieve plaintiff from making known interested persons parties; subsequent purchasers known to plaintiff should be made parties so their rights may be litigated)
- Merrill v. Wright, 65 Neb. 794 (Neb.) (discussing scope and purpose of lis pendens)
- Kirchner v. Gast, 169 Neb. 404 (Neb.) (intervenor under § 25-328 becomes a party with rights of a party)