114 Neb. 226 | Neb. | 1925
Plaintiffs brought this suit in the district court for Nemaha county, seeking to quiet title in themselves to 80 acres of land in such, county, as children of Minerva Flack, under a warranty deed executed, delivered, and recorded in such county on June 7, 1872. At this date Minerva Flack was without issue born. Upon issues joined, trial was had to the court, resulting in a finding generally in favor of defendants and against plaintiffs, quieting title in fee and right of possession in William C. Bantz, defendant, and dismissing plaintiffs’ petition. To reverse this, plaintiffs appeal.
The issues raised by the pleadings necessary for our determination are but two, namely: Did the deed vest in Minerva Flack a life estate with remainder in fee to plaintiffs ? If not, are plaintiffs’ rights under such deed, if any, barred by the statute of limitations, through the adverse possession of defendant?
The parts of the deed necessary for our consideration are: “That William Cummings and Lydia Cummings, his wife, of Nemaha county, in the state of Nebraska, in consideration of the sum of five hundred dollars in hand paid by Minerva Flack of Nemaha county, and state of Nebraska, do hereby sell and convey unto the said Minerva Flack and unto her children, the following described premises: * * * And we covenant with the said Minerva Flack and her children that we hold said premises by good and perfect title.”
Taking up the first issue, it is true as found by the trial court, and as stated by the attorneys at the argument, it would be a useless task to attempt to harmonize the conclusions of text-writers, as well as the diverse holdings of the courts, on the question of the proper construction of such a deed. We have section 5594, Comp. St. 1922, which provides In substance that in construing conveyances of real estate it shall be the duty of the court to carry into effect the intent of the parties as reflected by the whole instrument. Section 5590 provides: “The term ‘heirs,’ o,r
To hold that such deed vested in Minerva Flack a life estate, as contended by plaintiffs, would be to read into the instrument provisions not placed therein by the parties. The reasoning in the decisions and the conclusions of text-writers holding to the contrary are to' us not persuasive. If a life estate was intended there would certainly be something in the instrument indicative of such thought. The trial court was right in holding that the deed did not limit the estate vested in Minerva Flack to one for life.
It is not necessary to, and neither do we, determine whether “unto her children” in such deed are words of limitation or words of purchase, or if words of purchase, there being no child born at the time, whether Minerva Flack took an absolute title, or whether the deed vested in her and the unborn child the title as tenants in common, or whether such tenancy included children afterwards born.
As to the second issue, if plaintiffs or any other person acquired an interest in this land by virtue of this deed, or by or through any one claiming title thereunder or by reason thereof, the record discloses that this action was not commenced until 20 years after the youngest child of Minerva Flack became of age, and 39 years after defendant William C. Bantz purchased the land in question of Minerva Flack and those claiming title through her, by mesne conveyances, and also by assignment of a tax certificate as to one 40
Furthermore, those different conveyances in no manner recognized the title, or any part thereof, as existent in any other than the parties thereto. This of itself amounts to an ouster, and we so held in Beall v. McMenemy, 63 Neb. 70, wherein we said that such a sale of land “by one tenant in common has been held to amount to an ouster of his co-tenants,” citing Culler v. Motzer, 13 Serg. & R. (Pa.) 356. This rule was approved by us in Wiese v. Union P. R. Co., 77 Neb. 40, and Bohrer v. Davis, 94 Neb. 367. This adverse possession vested in William C. Bantz a fee simple title to the tract in question.
The judgment of the district court is
Affirmed.