87 Neb. 438 | Neb. | 1910
William F. Helming died intestate on the 5th day of December, 1889, without issue, leaving a widow, Minnie O. Helming. His mother, Charlotte Helming, and his brothers, Charles G. Helming and Otto B. Helming, and his sister, Minnie Sill, were his only heirs. His mother died soon thereafter, and her interest descended to the brothers and sister who are the plaintiffs in this action. The widow made application to the county court of Dawson county under the provisions of chapter 57, laws 1889, known as the “Baker Decedent Law,” to have the homestead assigned to her. Action was taken by the court thereunder, setting aside and assigning to her the homestead of the deceased consisting of 160 acres of land. She afterwards married Emil O. Forrester, and afterwards died, leaving the defendant, Paul Forrester, a minor, as the sole issue of this marriage. During coverture, Mrs. Forrester and her husband executed a mortgage on the premises to one Le Flange, which mortgage was after-wards assigned by him to Emil O. Forrester. The mortgage and the assignment both appear on the records of Dawson county. Mrs. Helming and the defendants have held possession of the premises ever since the death of William F. Helming. The plaintiffs bring this action,
The answer pleads the decree of the county conrt; the passage of the curative act of April 9, 1895; the payment of certain mortgage indebtedness upon the land in reliance upon the title of Minnie C. Helming; title by adverse possession ever .since the entry of the decree in 1890. Defendants pray that their title be quieted and for general equitable relief.
The reply alleges that the curative act is void, being in violation of the constitution of the state, and denies the other allegations in the answer. The court found that the defendants and Mrs. Helming have been in the adverse possession of the- land since the 20th day of March, 1890, and that since the date of the decree in the county court no right of plaintiffs in the real estate has been admitted or recognized by Mrs. Forrester or these defendants, and quieted the title in the defendants.
We are of opinion, therefore, that, so far as this action is for the purpose of quieting title, it is barred by the statute, but the purpose of the action is to recover possession as well as to quiet title. It is true that the case was tried to the court, and not to ¿ jury, to which the parties in a possessory action are entitled; but, since neither party demanded a jury trial and they proceeded to try this issue without objection, they waived that right. Moreover, the defendants interposed an equitable defense and prayed for equitable relief. This did not change the character of the action from one for possession as well as to quiet the title (Albin v. Parmele, 70 Neb. 740, 746), and under the rule in Hobson v. Huxtable, supra, the cause of action for the possession of the property having been brought within ten years from the termination of the life estate was not barred. The holding in First Nat. Bank v. Pilger, supra, to the effect that the statute of limitations commences to run against an action to quiet title at the time the adverse claim attached, is not inconsistent with these views. Holmes v. Mason, 80 Neb. 448.
We are of opinion that the decree of the district court quieting title in the defendants is erroneous. Its judgment is therefore reversed and the cause remanded for further proceedings.
Reversed.