Brown v. Jacobsen Land & Cattle Co.
297 Neb. 541
| Neb. | 2017Background
- Jacobsen owned land in Banner County; Brown claimed ~80 acres of Jacobsen’s land by adverse possession and recorded a lis pendens before Jacobsen closed a sale to the Nebraska Game and Parks Commission (the State).
- Jacobsen executed and recorded a warranty deed to the State after Brown recorded lis pendens; Brown sued Jacobsen in a quiet title/adverse possession action and served lis pendens properly.
- The State moved to intervene asserting record (and equitable) interests from the purchase agreement; the district court allowed intervention over Brown’s objection.
- The district court held as a matter of law that the State was a “subsequent purchaser” under the lis pendens statute and therefore could not acquire any greater title than Jacobsen had at closing; the court nonetheless refused to let the State present evidence opposing Brown’s adverse possession claim at trial.
- Jacobsen withdrew from participation before trial; Brown presented evidence alone and the court quieted title in Brown. The State appealed, arguing (among other things) it should have been allowed to defend and present evidence despite being a subsequent purchaser.
Issues
| Issue | Plaintiff's Argument (Brown) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the State was a subsequent purchaser under the lis pendens statute | Lis pendens was filed before the State’s deed; thus the State is a subsequent purchaser and bound by the notice | The State did not contest the timing but argued intervention and its equitable title gave it rights to participate | Held: The State was a subsequent purchaser; timing of lis pendens and deed supports that finding |
| Whether a subsequent purchaser-intervenor may participate fully and present evidence in the quiet title action | Brown: A subsequent purchaser has no greater defense rights than the original defendant and thus should not be allowed to "stand in the shoes" to contest adverse possession | State: As an intervenor and party, it is entitled to the normal rights of a party (discovery, present evidence, examine witnesses) despite being a subsequent purchaser | Held: Reversed — an intervening subsequent purchaser is a party and may fully participate and offer evidence; the court erred by barring the State from presenting evidence |
| Whether lis pendens restricts substantive defensive rights of parties | Brown: Lis pendens limits a subsequent purchaser’s ability to acquire interests and thus limits its defense rights | State: Lis pendens is procedural, giving notice, and does not strip an intervenor of ability to defend its interest | Held: Lis pendens is procedural and does not remove an intervenor’s substantive rights to defend; it cannot be used to bar evidence presentation |
| Whether the lis pendens should have been canceled | Brown: No cancellation warranted; lis pendens was properly recorded | State: Alternatively asked for lis pendens cancellation so its purchase would not be bound | Held: Court declined to address cancellation on appeal because the State never moved to cancel below; appellate review limited to matters presented to trial court |
Key Cases Cited
- Hadley v. Corey, 137 Neb. 204 (Neb. 1939) (explains lis pendens binds subsequent acquirers pendente lite and that subsequent purchasers take subject to decree)
- Munger v. Beard & Bro., 79 Neb. 764 (Neb. 1907) (statute of lis pendens does not excuse plaintiff from making known-interest holders parties; such parties must be allowed to litigate rights)
- Kelliher v. Soundy, 288 Neb. 898 (Neb. 2014) (statutory interpretation of lis pendens and discussion of notice/pendency mechanics)
- Kirchner v. Gast, 169 Neb. 404 (Neb. 1960) (intervenor under § 25-328 becomes a party and has rights of a party)