94 Neb. 729 | Neb. | 1913
This action was a suit in equity, brought in the district court for Perkins county, to quiet the title to the north half of section 31, township 11, range 39 west, situated in that county, in the plaintiff, and cancel certain deeds, under which the defendants claimed title, as clouds upon the title of the plaintiff.
When the action was commenced, plaintiff confessed defendants’ demurrer to her petition, and on the 10th day of April, 1910, she was allowed 90 days in which to file' an amended and supplemental petition. When the amended petition was filed, defendants Shuter and Westphalen answered, claiming title by mesne conveyances from one W. L. Rutledge, who purchased the land in question from Galen S. Battey, as executor of the will of Pauline A. Battey, deceased, who conveyed the land to Rutledge in pursuance of his purchase. The other defendants made no appearance, and default was entered against them. There was a reply which put in issue the allegations of the answer. A trial to the court resulted in general findings and a decree for the plaintiff, and the defendants Shuter and Westphalen have appealed.
It further appears that on April 16, 1902, Losada L. Battey and his Avife, Mary L. Battey, conveyed by quitclaim deed to the plaintiff all their interest-in and to the land in question, and that by a clerical mistake in Avriting said deed the land was described as the “north half of section thirty (30), in toAvnship eleven (11) north of range thirty-nine (39),” instead of the “north half of section 31,” and on the 31st day of October, 1903, said quitclaim deed was recorded in the records of Perkins county, Nebraska; that on the 7th day of May, 1907, Galen S. Battey conveyed to the plaintiff, who is his wife, his interest in said land by a quitclaim deed, and on May 11, 1907, said deed was recorded in the deed records of Perkins county, and it is under the above described quitclaim deeds from the sole heirs of Pauline A. Battey that the plaintiff claims title to the land in question.
It is further disclosed by the record that after the demurrer was confessed, and before the amended and supplemental petition was filed, such proceedings were had
As we view this case, the last-mentioned proceedings gave the plaintiff no additional right of action other thán that possessed by her when her suit was commenced. The appellants contend that the court erred in its findings and judgment for the plaintiff, and that the findings and judgment are contrary to law.
The first question presented for our determination may be stated as follows: Was the will of Pauline A. Battey operative upon her interest in the Perkins county land on which she held- the mortgage, the use of which was- devised to Losada L. Battey? This question seems to have been settled in Woods v. Moore, 4 Sandf. (N. Y. Super. Ct.) 579, 589. It was there said: “The rule established is very plain that, where it is clear that there-was an intent that the property in question should pass, it will be held to pass, notwithstanding a misdescription, so long as there is enough of correspondence to afford the means of identifying the subject of the gift. The rule comes to this that, where it is necessary to carry out the intent that the will shall operate on the real estate, it will be held so to operate, although the object is not thus described, and vice, versa. So when the devise is of land, and it turns out that the testator's interest was a mortgage upon the same land, the law may pass his estate as mortgagee, such as it actually existed, with all his rights and interests in the debt,
The next question" for our determination is: Did the power of sale contained in the will authorize the executor to sell and dispose of the interest thereby conveyed? Upon that question the will provided: “I further devise and bequeath to my son, Losada L. Battey, the use of the following described property, with the provision that the executors of this my last will have the power and are hereby instructed to sell all or any of the property hereinafter described.” Her interest as .mortgagee of the Perkins county land was contained in the description of the property devised. It is conceded by all the parties that Galen S. Battey, as executor, had the power under the will to take title to this land in payment of and to cancel the mortgage debt. This was done, and when the title was conveyed to Mm as executor he took and held the same as personal estate, and was charged thereAvith as such administrator. Where land is taken in payment of debts due the estate, such land becomes assets of the estate, and may be sold Avithout an order of the court, even though no poAver of sale is contained in the will. 18 Oyc. 351. Such land will be treated as personalty, and may be sold by the executor Avithout an order of the court in those jurisdictions where he is not required to obtain leave of court tj
It further appears that Galen S. Battey, at the proper time, settled all of his accounts with the administrator de bonis non of the estate of Pauline A. Battey, and was discharged as such administrator; that Prank A. Nye, administrator de bonis non, settled his accounts with the estate, and has been discharged. It is not claimed or intimated that the estate or that Losada L. Battey had not received the purchase price of the land in question and converted it to his own use, and the presumption is that it was so received and converted. It appears that at all times during the settlement of the estate of Pauline A. Battey all of
As we view the record, the defendants were entitled to the findings and judgment, and the cause is reversed and remanded to the district court for Perkins county, with instructions to dismiss the plaintiff’s action and render a judgment for the defendants Slmter and Westphalen, quieting their title to the land in question.
Reversed.