91 Neb. 699 | Neb. | 1912
Defendant Christiana Dingwell is the mother of plaintiffs; defendant John Dingwell being her second husband. Her former husband, and father of the plaintiffs, Robert Bell, a resident of the state of Iowa, died December 5, 1885, leaving defendant Christiana and the plaintiffs as his only heirs at law. At the time of his death he owned 80 acres of land in Taylor county, Iowa, and some property in the town of Clearfield, in that county. The children were then aged three, six, and eight, respectively. In 1887 defendant Christiana was married to her codefendant. In December, 1889, she was appointed by the county court of Pawnee county as guardian of the ^plaintiffs, and duly qualified as such. On February 15, 1890, she was duly appointed foreign guardian of plaintiffs by the district court for Taylor county, Iowa. Previous to her marriage with her co-defendant, she had moved with the plaintiffs to Pawnee county, in this state. Upon her appointment as guardian by the district court in Iowa, she filed in that court her petition, in which she alleged that she was the owner of an undivided one-third, and the minor children, plaintiffs herein, were the owners of an undivided two-ninths, each, in the real estate in that county; that the farm land was worth |2,200, subject to a mortgage for $700, $500 of which was then due and unpaid; that neither she nor the minor children had any means with which to pay the mortgage; that the property in Clearfield was worth $600; that petitioner- was permanently located in Pawnee county, Nebraska, was the mother of said minors, and that they resided with her; that Jacob Wade was the owner of the northeast quarter of the northeast quarter of section 35, and the northwest quarter of the
After the marriage of the defendants they moved upon the land in controversy, and have lived thereon ever since. During all the years of their minority the plaintiffs lived with the defendants, and the relations of the parties were those of an ordinary family, the defendants exercising the authority over and giving to the plaintiffs the care, supervision and attention usually exercised and given by parents, and the plaintiffs yielding to them the obedience and service usually accorded and given by children to parents. They worked just as other children work upon farms, and were educated in about the same manner that other respectable parents of their class educate their children. There is some evidence tending to show that, while attending the public school, the children were kept at work upon the farm a little longer in the autumn than other children, but, upon the whole, we are unable to say that they did not receive the same consideration as that ordinarily received by children brought up upon the farm. On the other hand, it is conceded by the defendants that plaintiffs performed their duties as children.
The prayer of the petition is that defendant Christiana be decreed to be the owner of but an undivided one-third interest in the land; that she be decreed to be the holder as trustee for each of the plaintiffs of an undivided two-ninths, which interest she be required to convey to plaintiffs free and clear of all incumbrances, or that judgment be entered confirming the shares of the parties accordingly; that the mortgage of $900 be decreed, as between
Defendants filed objections to the jurisdiction of the court on the ground that defendant Christiana is guardian of the plaintiffs; that she has made no final report as such; that she has not been discharged, and that the guardianship matters are still unsettled; and also filed a general demurrer to the petition. The objections and demurrer were all overruled, and defendants answered, first, that the court had no jurisdiction for the reasons set out in their objections above outlined; second, the statute of limitations. The answer then admits the filing of the petition in the court in Taylor county, Iowa, and the entry of the decree by that court; admits the relationship of the parties to this suit; admits receiving the use and benefit of the Pawnee county land, but denies the value thereof “being anything like the sum alleged by plaintiffs;” admits that the land was deeded to defendant Christiana in her own name; denies generally all allegations not specifically admitted; alleges that while the guardian’s action was pending in the Iowa court the mortgagee commenced a foreclosure of the mortgage; the borrowing by defendant Christiana from her husband and codefendant of sundry sums of money, which sums, together with the $400 received from the sale of the Clearfield property, were used in paying debts of her former husband; that there was no money or property remaining in the estate of her former husband, after paying off the debts and the judgment in foreclosure; that defendant Christiana is the owner of the land in contro
The court upon a hearing found generally for plaintiffs, and found specially: the death of Robert Bell; the property owned by him at the time of his death and the relationship of the parties as above outlined; that, under the laws of Iowa in force at the time of the death of Robert Bell, his lands descended in fee simple, one-third to defendant Christiana and two-thirds to the three children jointly; finds the ages of the plaintiffs; that the youngest reached his majority February 16, 1906; that this action was begun February 13, 1909; the marriage •of the defendants; the appointment of defendant Christiana as guardian in the two courts above referred to; that Christiana made application to make the exchange of lands and obtained an order therefor and executed such exchange, as above set out; the sale of the Clear-field property by defendant; that the mortgage on the Taylor county land amounted, with interest and costs, to $800; the receipt by defendant Christiana from the
We shall not separately consider the cross-appeal, as the conclusion we have reached disposes of all points raised on both appeals.
It is argued that, under the rule that where an action is pending in two courts the court first acquiring jurisdiction will hold the same, excluding the other, the district court was without juris., .etion to proceed with this matter, for the reason that it is still pending in the county court of Pawnee county and should have been completed there, and the guardian discharged or an appeal taken from the settlement before a suit for partition or for the quieting of title could be maintained. This contention
It is further urged that the court erred in awarding partition, for the reason, as claimed, that this is an action concerning real estate, where the title is in dispute; that the pleadings show this to be true, and that the first fact to be determined is that of ownership, which is a fact to be determined by a jury, and under the law cannot be tried out in an action in equity for the quieting of title and the partitioning of land among cotenants; that partition cannot be had by one out of possession, where they have no title, or where the title is in and ownership claimed by another. In support of this contention they rely upon Seymour v. Ricketts, 21 Neb. 240, and McMurtry v. Keifner, 36 Neb. 522. In those cases the parties asking for partition claimed to have the legal title; and, the parties asking for partition being out of possession, we held that they could not obtain such relief until they had first obtained possession by the ordinary proceedings at law. In this case plaintiffs expressly alleged that they did not have such a title, but that defendants fraudulently, as we shall later show, possessed the entire legal title. They therefore were not in a condition to bring ejectment nor to obtain any rights in any sort of an action at law. They were compelled in the first instance to appeal to a court of equity to invest them with their actual ownership in and title to their undivided interests in the lands in controversy. The court having properly acquired jurisdiction for that purpose, which was really the main and controlling question, properly retained it for all purposes. As was said by our present chief justice, in Buchanan v. Griggs, 20 Neb. 165: “It is a well-settled principle of equity jurisprudence that where a could of equity has obtained jurisdiction of a cause for any purpose it will retain it for all, and will proceed to a final determination of the case, adjudicate all matters
Another defense relied upon is the statute of-limitations. Under the holdings of this court in Kerr v. McCreary, 84 Neb. 315, and Bank of Alma v. Hamilton, 85 Neb. 441, it is questionable whether the defendants are entitled to urge this defense, for the reason that, by appearing and asking for an accounting and praying for equitable relief, they have subjected themselves to the equitable powers of the court and have bound themselves to do equity on their part. In the first paragraph of the syllabus in the latter case we held: “If a litigant asks affirmative equitable relief, he will be required to do justice himself with regard to any equity arising out of the subject matter of the action in favor of his adversary, and the statute of limitations is no bar to the imposition of such conditions.” In addition to the rule there announced, we think the district court was right in holding, in effect, that this suit is governed by section 12 of the code, which provides that an action for relief on the ground of fraud may be brought within four years after the diseoverey of the fraud. But it is urged by defendants that “the petition in this action does not plead or attempt to plead any fraud, but that by mistake or inadvertence appellant Christiana Dingwell was named
It is further contended that the court erred in finding that the $900 mortgage should, as between plaintiffs and defendants, be a lien on the share of defendants only; and in support of that contention it is urged that they were compelled to mortgage the land in the first instance to raise the balance of money needed to complete the payment of the debts against the estate of plaintiffs’ father, which included the mortgage and numerous other items. This contention must fail for several reasons. The practical effect of the court’s judgment is to charge only $700
It is next insisted that the court erred in admitting certain exhibits offered by plaintiffs “purporting to be the law7s of the state of Iowa,” We find it unnecessary to inquire into this question, for the reason that, even if the exhibits w?ere improperly admitted, they simply corroborate the allegations contained in defendants’ petition, which she filed in the Iowa court, and in which she set out the interests of herself and her children, as the heirs of Robert Bell, deceased.
It is next contended that the court erred in declining to make any allowance to defendants for having “nursed, fed, clothed and schooled these appellees wiiile they were minors.” We are not willing to disturb the finding of the court upon this point. The district court, wiiile refusing to permit defendants to recover for the items named, also refused to permit plaintiffs to recover anything for the rents and profits of the property during the same period of time. This disposition of that point is clearly equitable and meets with our approval.
The statement is made by ' defendants in their brief that the land in controversy is the homestead of defend
Finally, it is contended that the findings and judgment of the court, are not sustained by the evidence. Upon this point defendants must likewise fail. We have examined the record from beginning to end, and, were the case before us in the first instance, we could not reach a conclusion more favorable to defendants than that reached by the district court.
In one respect the decree must be modified. The court in its decree finds: “That defendants since' taking possession of the land have erected valuable and permanent improvements, the present worth being $1,750, for which they are entitled to compensation.” After confirming the shares of the respective parties the decree provides that the land be “divided among the parties according to their shares, provided that there be added to the share of Christiana Dingweli an amount in area equal in value to $1,750, value of improvements.” This judgment is hot in accordance with the finding. The improvements were placed upon the land as a whole. One-third of these im
Affirmed as modified.