92 Neb. 284 | Neb. | 1912
Lead Opinion
This case was advanced under our rules; it being its second appearance in this court. Our former opinion will be found reported in 87 Neb. 438. The facts are therein stated, and need not be repeated here. After the case was remanded, the petition was amended by adding the averment, “that said plaintiffs have a legal estate in and are entitled to the possession of said described premises, and said defendants since the 25th day of December, 1901, have unlawfully kept, and still unlawfully keep, the plaintiffs out of the possession of said premises.” A jury was impaneled, and the trial proceeded upon the theory that it was an action in ejectment.
The interest of Minnie O. Helming and of her heirs, defendants herein, the void character of the decree of the county court, the right of the plaintiffs to prosecute the action for possession, and the defense of the statute of limitations are all disposed of by our former opinion, which is now the law of the case. The only questions presented here, which were not disposed of there, are: (1) The plea of a defect of parties plaintiff. (2) Did the district court err in declining to submit to the jury more than the single question as to thp value of the rents and profits of the land in dispute for the years 1905 to 1908, inclusive?
The contention that there is a defect of parties plaintiff is based upon the fact that about two months prior to the commencement of the action the plaintiffs executed to their attorneys a quitclaim deed to an undivided one-half of the land in controversy. The uncontradicted evidence is that the deed was made and delivered as security only for the services to be rendered by counsel under their contract of employment. The deed was in effect a mortgage, and it was not necessary to join the grantees therein named as plaintiffs.
The evidence being undisputed that the only interest defendants have in the land is as the surviving husband
The judgment of the district court being in harmony with our former opinion, and being fully sustained by the evidence, it is
Affirmed.
Concurrence Opinion
concurring in conclusion, and dissenting as to reasons given.
As stated in the main opinion, our former' opinion is reported in 87 Neb. 438, and it would not be necessary to write this opinion if it were not for the fact, as the writer conceives, that material matter is left out of the main opinion. It is stated in the first opinion that William F. Helming -died intestate December 5, 3889, without issue, leaving a widow, Minnie C. Helming; that his mother, Charlotte Helming, and his brothers, Charles G. Helming and Otto B. Helming, and his sister, Minnie Sill, were his only heirs; that his.mother died soon thereafter, and that her interest descended to the brothers and the sister above mentioned, who were the plaintiffs in the action brought in the district court; that the widow made application to the county court under the provisions of chapter 57, laws 1889, known as the “Baker Decedent Law,” to have the homestead assigned to her; that action was taken by said court setting aside and assigning to her the homestead of the deceased, consisting of 160 acres’ of land; that she afterwards married Emil O. Forrester, and thereafter died leaving the defendant, Paul Forrester, a.
The material matter left out of the main opinion is that after the case was remanded by this court to the district court for Dawson county, and there was an amendment thereafter made to the petition by adding the averment,
In the present case the defendants’ answers were in effect general denials and a plea of defective parties plaintiff, and the case was tried before a jury, and proceeded apparently upon the theory that it was an action in ejectment, although it had formerly proceeded as an action to quiet title. The defendants requested an instruction submitting the ownership of the land to the jury, but the instruction was refused. The court submitted to the jury but one instruction, which was to find the value of the rents and profits of the land in dispute for the years 1905, 1906, 1907, 1908. There was a finding by the jury under the direction of the court that the
It is contended by the defendants that it is not a question whether this court held the decree of the county court to be void, but did Mrs. Helming assert rights under the decree of the county court which were recognized by the district court, however erroneously, and of which facts the plaintiffs, or part of them, had notice at that time. It is contended by the defendants that the statute of limitations would begin to run from that time, and that,, if Mrs. Helming asserted her rights by reason of the decree, her adverse possession would begin at that date, not because of the decree, but because of the assertion of the right. It is also contended by the defendants that the second fact which enters into their case is the transfer by the plaintiffs to two of their attorneys of one-half of the land in controversy by,quitclaim deed, and before the suit was originally commenced. This seems to be the only contention of the defendants answered by the main opinion. Defendants also contend that the amended pleadings have so changed the issues from what they were at the first trial that the defendants are in no manner bound by the opinion of the court touching the former trial. They earnestly contend that title to the land is in the defendants by adverse possession.
It is contended by the defendants that the petition and answer necessary to a decree in the district court should
It is claimed that the principle announced in Robson v. Huxtable, 79 Neb. 334, and on rehearing, 79 Neb. 340, should determine this case. That case involved the consideration of a petition, pleadings and evidence, showing that one Annie E. Hobson died August 17, 1888, intestate, leaving her surviving husband, John H. Hobson, and her children, John J., aged 1 year, Roy J., aged. 7 years, Ida Belle, aged 14 years, and George W., aged 18 years; that at the time of her death she was “seized” of a quarter section of land upon Avhich she had resided with her husband and family for several years preceding her death; that the land did not exceed in value, over and above incumbrances, $2,000, and constituted the family homestead, if occupying it as a family residence was a sufficient selection under the homestead law; that on October 27, 1888, one Palmer was appointed as administrator of the estate of the deceased, and in May filed his petition under the statute for license to sell lands to pay debts; that such license Avas granted by the district court, and the premises were sold October 24, 1890, to one Charles Huxtable, a defendant, and the sale was confirmed, and the administrator con.Areyed the premises to the purchaser, who went into possession under his deed, and that his wife remained in actual possession until the final judgment of the court; and the prayer of the petition was for a decree declaring the administrator’s deed to be void. The defendants Ida Belle and George W. Hobson filed an answer
Minnie C. Helming died in December, 1901, and until that event an action in ejectment could not be maintained to recover possession of the premises because she had her life estate therein as the surviving spouse of William F. Helming. As the right of any plaintiff to maintain an action for the possession of said premises could not accrue until that time, the statute of limitations did not begin to run until that time was reached. The petition in this case was filed June 25, 1908, and the amendment thereto containing the allegation concerning the plaintiffs? alleged possessory right to the premises was made by leave of the court February 28, 1911. It will therefore be seen that the ten years required for a bar against the plaintiffs’ action had not expired at the time of the amendment to the petition, and the action was therefore well within the time. 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, it was not barred.
But, in the opinion of the writer, it is not a question of whether Mrs. Minnie C. Helming had a good title by reason of the proceedings in the county court, and by reason of the proceedings in the district court in which Charles G-.. Helming was prevented from obtaining a
At the trial of the instant case, Charles G. Helming testified, as shown by the abstract, that “on January 4, 1908, myself, my brother and sister made a deed for an undivided one-half interest in this land to Douglas Deremore and Fred J. Mack. We made the deed as a guaranty for the attorneys’ pay in this suit and a previous one. We executed and delivered the deed. to them to secure the attorneys for their pay in this case; I will say in the previous case and all cases, all cases that might come up concerning this land.” This testimony is not disputed in any way. It appears to be a fact that a quitclaim deed was
I dissent from the second paragraph of the syllabus because the same is not applicable to this case. When the former opinion was delivered, the issues under the pleadings were not the same as they are in the instant case.
I dissent as to the time when the statute of limitations should begin to run under the possession and claim of right to possession by Mrs. Helming, but under the rule laid down in Hobson v. Huxtable, supra, reluctantly concur in the judgment of affirmance which will have to be rendered.