94 Neb. 367 | Neb. | 1913
Lead Opinion
The plaintiff brought this action in the district court for Greeley county to quiet her title in 80 acres of land in that county. Both parties derived title from Ansel A. Davis, who died in Greeley county on the 3d day of March, 1892, intestate and leaving no children, father or mother. At the time of his death he had 160 acres of land. His widow made application to the county court under the statute known as the “Baker’s Decedent Law,” and the county court, pursuant to that application, caused the land to be appraised, and, it appearing to be worth but $2,000, the court entered a decree assigning the same to the widow as her homestead in fee. There was a mortgage of $1,000 upon the homestead, and some time after the decree of the county court the widow sold one 80 of this land to the plaintiff for $1,000, and in December, 1902, executed to
The so-called Baker’s decedent act has been many times held by this court to be unconstitutional and void, and it is conceded that the order of the county court attempting to vest the fee in the widow was void. She had only a life estate by virtue of her homestead right, but the plaintiff insists that, having paid the full value of the land, and having taken a warranty deed purporting to convey the entire estate and possession thereunder, and having held the same as her own to the exclusion of all parties and with the knowledge of all these defendants for more than 17 years when this action was begun, her title has become complete. The defendants insist that the statute of limitations did not begin to run as against them .until the death of the widow holding the life estate, and, as their action was begun within the ten years thereafter, it was not barred by the statute.
Counsel for plaintiff, in the oral argument and in the brief, has presented his views with clearness and force, so much so that, if the question were a new one, the writer would have been convinced that the better reason supports the plaintiff’s views. When the plaintiff bought this land, the so-called Bakér’s decedent act was generally supposed to be valid legislation, and all parties interested in the transaction supposed that the plaintiff’s grantor had perfect title and that the plaintiff took a clear and unquestionable title by her purchase. She paid full value for the land, received a deed with full covenants of seizin and warranty, took immediate, complete and notorious pos
The universal rule of law is that the statute of limitations does not begin to run against a right of action until that right exists. The party who has the right of action has the full period of the .statute in which to enforce it. The remainderman has no right of possession until the particular estate is terminated. He has no right of action which depends upon the right of possession until he is entitled to the possession. The plaintiff says that the statute begins to run when there is an ouster or disseizin, and that a deed by a tenant to a stranger, purporting to convey the whole estate for full value actually paid and possession thereunder, operates as ouster of the remainderman. There are many authorities so holding, but never unless the remainderman by such sale and convey-, anee becomes entitled to possession. In the cases so holding, it is also held that the tenant by such sale and conveyance forfeits his estate; and the remainderman may at once elect whether he will consider the particular estate forfeited. If he so elect's he may recover possession, and of course under such circumstances the statute of limitation's would at once begin to run against his claim. But the courts so holding also generally hold that the remainderman is not required to consider the particular estate forfeited; he may disregard the act of the tenant in making such sale and conveyance and may claim his estate when the particular.estate is terminated according to its terms. The statute then will not commence to run until his right of possession accrues at the termination of the life estate.
The general question is pretty fully discussed in a note to Allen v. De Groodt, 14 Am. St. Rep. 626 (98 Mo. 159). The editor says in the note: “When,'upon the termination of a life or other estate which entitled its owner to the possession of the property, the reversioner or remainder-man becomes vested with an estate giving him a right to such possession, lie will naturally meet with reluctance upon the part of the persons in possession to yield it to him. If possible, they will interpose a claim that his estate has been extinguished by prescription, or by his laches, or by any other mode which their ingenuity or that of their counsel can suggest. It is a general rule, well supported both by reason and authority, that no one can be in default in not bringing an action which it was impossible for him to have maintained if brought, and that no statute of limitations can commence running until the period arrives when the person claiming title or right of possession can successfully vindicate his claim and right by some appropriate action. When, therefore, one who lias been a reversioner or remainderman becomes entitled to the possession of the property by the termination of a preceding estate in possession, and. he brings his action to enforce his right, and is met with a plea of prescription or laches, the proper inquiry is, whether the action which he thus brings could have been commenced and maintained by him at any period anterior to its actual commencement; and, if so, the statute must be regarded as operating from and after such period. If, after that period, the full time
Tenants in common have an equal right of possession, and if one of them conveys the whole estate for full value to a third party, who excludes the other tenant in common, the statute of limitations will run from the time of such exclusion. Beall v. McMenemy, 63 Neb. 70. The reason is because the right exists at the time of the exclusion. No new or additional right accrues to the tenant so excluded. His right of action is as complete as it ever can be. The plaintiff cites, as supporting her theory, Lewis v. Barnhardt, 43 Fed. 854; Crawford v. Meis, 123 Ia. 610. There is language in the opinion in each of these cases which appears to support the plaintiff’s contention. In Lewis v. Barnhardt the estate was sold for taxes and the defendant claimed under that title. It was held that the purchaser at the tax sale was a purchaser in good faith, “without notice that his vendor owned an estate for life,” and that in such case the statute of limitations began to run from the time of the purchase. The decision is put
The defendant Mansell Davis, as one of the two surviving brothers of the decedent, Ansel A. Davis, inherited a one-half interest in the estate in remainder, and has since purchasd a one-twelfth interest from one of the heirs of his deceased brother, Orsel. The outstanding mortgage of $1,000 covered not only the 80 acres of land involved in this litigation, but included also land which has now descended to Mansell Davis. It was in his interest to have this mortgage paid. He was consulted in regard to selling a part of the land in order to relieve the remainder from
The decree of the district court, therefore, is right as to the children and heirs of Orsel Davis, deceased. The decree is modified so as to quiet the plaintiff’s title in seven-twelfths .interest in the land, and in other respects is affirmed, and the cause is remanded, with instructions to partition the land between the plaintiff and the children of Orsel Davis, deceased. The costs in this court will be equally divided between the plaintiff and the defendant Mansell Davis.
Affirmed as modified.
Dissenting Opinion
dissenting.
The majority opinion is an excellent one down to the last paragraph, and as to the first and second paragraphs of the syllabus. The closing paragraph of the opinion and the third paragraph of the syllabus are, in my judgment, all wrong. Referring to defendant Mansell Davis, the opinion states: “The outstanding mortgage of $1,000 covered not only the 80 acres of land involved in this litigation, but included also land which has now descended to Mansell Davis. It was in his interest to have this mortgage paid. He was consulted in regard to selling a part of the land in order to relieve the remainder from incumbrance, and consented to so doing. The proceeds' of the 80 sold were used to relieve the remaining 80 from incum
Mrs. Bohrer, the plaintiff, gave no testimony on the subject. It is evident, therefore, that she had no conversation whatever with Mansell Davis. Her husband testified as folloAvs: Direct examination: “Had a talk Avith Man-
Mansell Davis testified, upon direct examination: “I heard part of Mr. Bohrer’s testimony, not sure I heard it all. I don’t think I had as much conversation as he said. I remember his asking me something about the advisability of his buying that place. I can’t just recall now nearly so much as he said here. I remember his asking me if I thought he ought to buy, or if it would be safe for him to buy it. Well, I may have suggested that it would be safe enough for him to buy it so far as I knew. I didn’t advise him to buy it, as he said. I am very sure we never had any such conversation on Sunday at his place.” Plaintiff’s counsel did not see fit to cross-examine Mansell. The above is the entire testimony upon this point.
The decree of the district court found that the defendants were entitled to the possession of the premises at the death of Mrs. Davis and to the rents and profits since that time; that plaintiff’s possession since the death of the life tenant had been wrongful; found the value of the improvements made by plaintiff to be $125 (plaintiff testified that no buildings had ever been erected on the property); found the sums paid for taxes for the year 1892 and taxes
Briefly stated, plaintiff purchased the life estate of the widow Davis and has enjoyed that life estate for 17 years. In order to have that enjoyment, she paid off a mortgage of $1,000. The decree of the district court now gives that back to her, credits her for taxes paid since the death of the life tenant, credits her with her improvements, and only charges her with rent since the life tenant’s decease. If she is not obtaining full equity under the decree of the district court, then I confess that I have no conception of. equity. The holding of the majority opinion amounts to absolutely taking away from a remainderman his estate, under the guise of estoppel, when no estoppel has been shown.
As an abstract proposition of law the. third paragraph of the syllabus may be sound; but the trouble is, it has no application to the facts in this case. Mansell Davis is not invoking the aid of a court of equity to repudiate a sale by the life tenant which he had advised. He is here standing upon his legal rights, in a suit in equity com