84 Neb. 78 | Neb. | 1909
The subject matter of litigation in this suit is 640 acres of land in Knox county. Both parties claim title. When Clement L. Boon was the undisputed owner, he conveyed the land and 160 acres more to Ellis W. Wall January 1, 1890. Eight days, later the grantee and his wife mortgaged the entire tract of 800 acres to Pierce, Wright & Company for $2,850, and by deed, dated January 11, 1890, reconveyed it to Boon, subject to the incumbrance thus created. Boon did not pay the taxes, interest, or the mortgage, but left the state a year or two later, and never returned. September 28, 1903, Boon executed and delivered to Paul Butler a quitclaim deed to the premises, and the latter’s interest was transferred to plaintiff March 7, 1904. In the meantime Henry H. Drake became the owner of the mortgage, brought suit March 1, 1894, to foreclose his lien, procured a decree of foreclosure, bought the land August 18, 1894, at judicial sale thereunder, which was confirmed September 25, 1894, and received April 27, 1895, a sheriff’s deed to the entire tract of 800 acres. Through mesne conveyances from Drake, defendants claim title to the 640 acres in controversy and are now in possession thereof. Plaintiff instituted a suit in ejectment against them March 11, 1905, for the realty
The trial court held that Boon’s title was divested and the right to redeem terminated by the foreclosure of the mortgage. Plaintiff insists that this holding was erroneous, and that the foreclosure proceedings were void for the following reasons: Boone did not sign the mortgage or the notes secured. He was sued by the initial letters of his name. There was no notice except by publication. The verification in Drake’s petition did not state that he could not discover Boon’s true name, and neither the summons nor notice contained the words “real name unknown,” as required by section 148 of the code. The title to the land described in Drake’s petition stood on the public records in the name of Clement L. Boon. On these facts plaintiff argues that the district court had no jurisdiction to bar her equity of redemption, and that the sheriff’s deed was void. In an effort to meet this attack on the foreclosure proceedings, defendants adduced proof in the present case to show that in the name of “C. L. Boon” he transacted business, accepted deeds, transferred realty, and acted in the capacity of deputy county clerk and of notary public. It is insisted by defendants that these facts show he was sued by his true name. They have argued this point at some length, and have referred
Plaintiff also complains of the trial court’s ruling that defendants have title to the land by adverse possession. The objection to this finding is that there is no evidence to support it. Plaintiff commenced her action in ejectment March 11,1905. Summons was issued the same day, and afterwards returned with the appearance of each of the defendants indorsed thereon. She takes the position that the running of the statute of limitations against her cause of action was arrested March 11, 1905, when the summons was issued. Defendants insist that the ejectment suit was abandoned, and by reason thereof the
To establish title by adverse possession, it was therefore necessary for defendants to show that Drake took actual and exclusive possession of the premises as early as March 11, 1895. Clark v. Hannafeldt, 79 Neb. 566. Drake’s action in attempting to enforce his mortgage against 'the real estate was inconsistent with his claim of title by adverse possession. McKeighan v. Hopkins, 19 Neb. 33. He received the sheriff’s deed through which defendants claim title as late as April 27, 1895, and ten years had not elapsed March 11, 1905, when plaintiff’s ejectment suit arrested the running of the statute of limitations. There is evidence that Drake and his gran
Delay on the part of plaintiff in bringing her suit is also urged to defeat her recovery, but the rule in this state is that an action to redeem may be brought at any time before the statutory bar of ten years is complete. Dickson v. Stewart; 71 Neb. 424.
For the reasons given, the decree of the district court is reversed and the cause remanded for further' proceedings.
Reversed.