This is an appeal by Sarah A. Eayrs from a decree of the district court of Douglas county dismissing a suit in equity brought by her in that tribunal against William N. Nason.
2. Was the foreclosure decree rendered by the district court of Douglas county in the suit of appellee against appellant’s father void? We think it was. Appellant’s father, at the time of the institution of that suit and at the time of the pronouncing of that decree, was a resident of, and actually within, the state of Nebraska. The entire tract of land upon which the mortgage was a lien was situate in Douglas county, Nebraska. The action to foreclose the mortgage then could have only been brought in that county. (Code of Civil Procedure, sec. 51.) The appellant’s father did not appear in that action, and the only notice that he had of its pendency was a constructive one; that is, service by publication as provided by sections 77 and 78 of the Code of Civil Procedure. Appellant’s father was the owner of the legal title to the land upon which the mortgage foreclosed in that suit was a lien, and was therefore a proper and a necessary party to that suit..- He was a resident of, and actually present within, the state of Nebraska, and therefore no valid notice of the pendency of the suit could be given him by publication. In such an action as that personal notice of its pendency to one who is a necessary
4. Was this action when brought barred by the statute of limitations? We observe (1) that this finding of the court is not based upon the appellee’s answer that he had been in the adverse possession of the real estate for more than ten years before the suit was brought, because the court expressly finds that the real estate, at the date of the decree, and for nearly twenty years prior thereto, was vacant and unoccupied; (2) that the defense of the statute of limitations was not interposed by appellee in his answer. The court then must have reached the conclusion that the action was barred by the statute of limitations from the averments in the petition; that is, that the petition upon its face discloses that the action when brought wás barred. When it is not apparent from the face of the petition that the action is barred, the statute of limitations as a defense must be taken advantage, of by answer. (Hanna v. Emerson, 45 Neb. 708.) On the other hand, where a petition discloses upon its face that the cause of action is barred by the statute of limitations, objection may be made to the petition on the ground that the facts therein averred do not state a cause of action. (Peters v. Dunnells, 5 Neb. 460; Hurley v. Cox, 9 Neb. 230; Aultman v. Cole, 16 Neb. 4.) Since a defendant may avail himself at any stage of the trial of the fact that the petition shows upon its face that the action was barred by the statute of limitations when brought by interposing the objection that the petition
5. What is the cause of action alleged in the petition in this case? Appellant’s cause of action is that a sheriff’s deed held by the appellee and issued in pursuance of a judicial sale of appellant’s real estate is void because of the fact that the decree upon which the sale is based was void for want of jurisdiction of the court over appellant’s ancestor, who owned the land at the time the decree was rendered, and was made a party thereto, but not served with process in that case, and did not appear therein; that notwithstanding this decree and the sheriff’s deed based thereon are void, the appellee asserts title to appellant’s real estate by virtue of such void deed, and she seeks by this proceeding to have this decree and sheriff’s .deed decreed void and canceled and her title, which is disturbed by this void decree and deed and appellee’s assertion of title thereunder, quieted. Appellant’s, action is an equitable one — an action of which the old chancery courts possessed jurisdiction, and one which is recognized and provided for by section 57, chapter 73, Compiled Statutes. But no court of chancery would have taken jurisdiction of this action, because at common law a plaintiff, to obtain standing in a court of equity to quiet his title to real estate, must have been possessed of both the legal title and possession of the land. Our Code has modified the chancery rule in this respect, and now a party may maintain an action to quiet his title to real estate whether he be in or out of possession and whether his title be a legal or equitable one. (Force v. Stubbs, 41 Neb. 271; Hall v. Hooper, 47 Neb. 111.)
6. When did appellant’s cause of action accrue? If a defendant is in the adverse possession of a plaintiff’s real estate, claiming title thereto, plaintiff’s cause of action accrues when such adverse possession begins. (Stall v. Jones, 47 Neb. 706.) If the defendant be out of posses
7. We need not determine, then, the question argued in the briefs, as to whether an action to quiet title to real estate must be brought within ten years after the cause of action accrued, according to the provisions of section 6 of the Code of Civil Procedure, or within four years after the cause of action accrued, in compliance with the provisions of section 16 of the Code of Civil Procedure. That question remains undecided in this court, notwithstanding what was said in Parker v. Kulm, 21 Neb. 413; McKeeson v. Hawley, 22 Neb. 692; Baldwin v. Burt, 43 Neb. 245; Dorsey v. Conrad, 49 Neb. 443. The first case
Reversed and remanded.