79 Neb. 334 | Neb. | 1907
Lead Opinion
Anna E. Hobson died on the 17th day of August, 1888, intestate, leaving her surviving husband, John H. Hob-son, and her children, John T., aged 1 year, Roy Y., aged 7 years, Ida Belle, aged 14 years, and George W., aged 18 years. At the time of her death she was seized of a quarter section of land upon which she had resided with her husband and family for several years preceding her death. The land did not exceed in value, over and above incumbrances, the sum of $2,000, so that the same constituted the family homestead, if the mere fact of occupying it as a family residence was a sufficient selection under the homestead law. On the 27th day of October, 1888, one Palmer was appointed administrator of the estate of said deceased, and he in May filed his petition under the statute for license to sell said lands to pay, debts. Such license was granted by the district court, and such proceedings were had thereunder that the premises were on
1. The appellants contend that the fact of the use of the property as a family home for herself, husband* and children for some years before, and up to the time of her death, was insufficient to show that the homestead was selected with the consent of the wife, and, as to the defendants Ida Belle and George W., that more than ten years have elapsed since they became of age, and that they are accordingly barred by the statute of limitations. It is admitted by the appellants that, where the husband is. the owner of the fee, the mere fact of residence is suffi
2. Section 57, ch. 73, Comp. St. 1905, provides “that an action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any. person or persons, who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate”; while section 59 contains the further provision that “any person or persons having an interest in remainder or reversion in real estate shall be entitled to all the lights and benefits of this act.” It is clear that under this statute a remainderman may maintain an action to quiet title during the life of the life tenant; and it follows that the disability of the defendants Ida Belle and George W. ceased, and their right to bring an action to quiet this title accrued, more than 10 years prior to the filing of their answer in this case. It is contended by the attorney for the defendants Ida Belle and George W. that the claim set up in their answer is to be considered an action in the nature of ejectment, and that such an action could not accrue to them during the life of John H. Hobson, the life tenant. This again is met by the defendants Huxtable with the contention that, since the Huxtables did not claim under John H. Hobson, and could not claim to be the owners of his interest for life, an action by the heirs to obtain possession could have been as well maintained before as after his death.
We are, however, unable to regard this suit as an action in the nature of ejectment. The plaintiffs’ suit was to
We therefore recommend that the judgment of the district court be affirmed as to the plaintiffs Roy Y. Hobson and John T. Hobson, and that the same, as to the defend
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the court below in favor Of the plaintiffs Roy Y. Hobson and John T. Hobson is affirmed, and the judgment in favor of the defendants Ida Belle Busby and George W. Hobson is reversed and their action dismissed, and the costs of this court are divided equally between appellants Huxtable and appellees Ida Belle Busby and George W. Hobson.
Judgment accordingly.
Rehearing
In our former opinion, ante, p. 334, may be found a. statement of the facts in this case. A rehearing has been granted and the entire record presented for our consideration.
1. The defendants Huxtable insist that the record does not disclose that Anna E. Hobson owned the real estate1 in litigation in fee simple; that they stipulated only that she died seized of the real estate; that seizin may be for life or for years, and fall far short of an estate in fee1 simple; that, as they had interposed the defense of title by adverse possession, the heirs of Anna E. Hobson must trace their title bach to the United States. We do not think it necessary to decide the legal definition of the word “seizin,” because it was used in this case evidently as a synonym for title in fee simple. The testimony of the witness Tomkins further establishes that Mrs. Hobson purchased the farm some ten years before her death, and
2. It is claimed that the children of Anna E. Hobson did not take a vested estate in remainder upon the death of their mother. We cannot agree with counsel. The1 writers refer to the estates included within the homestead as a life estate for the surviving spouse, and either a remainder or reversion in the heirs. “A remainder is a remnant of an estate in land, depending upon a particular prior estate, created at the same time, and by the same instrument, and limited to arise immediately on the determination of that estate, and not in abridgment of it.” 4 Kent, Commentaries (13th ed.), *197. “A reversion is the return of land to the grantor and his heirs, after the grant is over.” 4 Kent, Commentaries (13th ed.), *353. In Caldwell v. Pollak, 91 Ala. 353, the estates are thus referred to: “A homestead exemption, actually and rightfully interposed, has the effect in law of dividing the freehold into two quasi ownerships, the one for life, and the other in remainder.” The title in the succession of a homestead is not evidenced by written grant, but arises from seizin, the family relation and residence; and those facts take the place of the written instrument that usually evidences the prior estate and the one in remainder. The nature of the estate devolving upon the heirs at the death of the fee-holding spouse is settled as squarely as the decision of this court can establish any principle of law, and is not open to question. In Schuyler v. Hanna, 31 Neb. 307, Ave held, “under section 17 of the homestead law of 1879, that the heirs of the person whose property had been selected for a homestead took a vested remainder therein, subject to the life estate of the surviving husband or wife.” In Fort v. Cook, 3 Neb. (Unof.) 12, Mr. Commissioner Hastings reviews the case of Schuyler v. Hanna, and clearly demonstrates that the estate of the heir vests upon the death of the parent. Durland v. Seiler, 27 Neb. 33; Cooley v. Jansen, 54 Neb. 33.
3. It is asserted that an action to quiet title cannot be
The administrator’s deed and the record thereof created a cloud on the remaindermen’s title, and gave plaintiffs a cause of action in equity against defendants Huxtable. Preceding the father’s death no relief other than an adjudication that the farm was a homestead, that the deed was void, and quieting title in plaintiffs as against the Huxtables, could be given by the court. With the added allegation and proof of the father’s death, the court could place plaintiffs in possession of the real estate. It was held in Albin v. Parmele, 70 Neb. 746, that in an equitable action to set aside a deed, where the right of possession was in issue and dependent upon the principles of equity that must necessarily be determined by the court, it was the duty of the court to determine the right of possession, and, if all parties in interest were before the court, to put the party who is entitled thereto into possession. The court therefore had power to and, upon proper terms, should quiet in each plaintiff his title to an undivided one-fourth part of said land, and to award them possession thereof. More than ten years intervened between the majority of defendants Ida Belle Busby and George W. Hobson, on the one hand, and the commencement of this action, on the other, so, therefore, the statute of limitations barred said defendants’ action to quiet their title to the real estate involved herein. First Nat. Bank v. Pilger, 78 Neb. 168; Holmes v. Mason, 80 Neb. 448. The court therefore erred in quieting their title to said real estate. However, they were before the
4. The trial judge rendered judgment against defendants Huxtable for the rental value of the farm for the year 1905. This was error. The Huxtables either succeeded to the rights of John H. Hobson, the surviving spouse, in said farm, or by adverse possession extinguished those rights, and during his lifetime had the right to the rents and profits thereof.. John H. Hobson died on the 18th day of June, 1905. In 1905 Huxtable raised 50 acres of wheat, 15 acres of oats, 50 acres of corn, and 15 acres of timothy and clover on said farm; the remainder of the land being used for pasturage and other purposes. The record is silent as to the date said annuals were planted, but we are safe in assuming the crops had not only been planted before but were growing at the date referred to. Defendants Hobsons’ anSAver and cross-petition was not filed till July 19, and the supplemental petition September 6, 1905. In any event, Huxtable had the right to mature, harvest and remove his crops. Edghill v. Mankey, p. 347, post. Whether, upon a proper issue tendered and definite proof in support thereof, the Hobson heirs could have recovered for the use and occupation of the land for that part of 1905 subsequent to their father’s death, we do not determine, but, certainly the burden was not upon Huxtables to furnish any evidence upon this issue. The Hobson heirs tried the case upon the theory they were entitled to rents for the entire year, and all their evidence referred to the value of the use and occupation and of the rents and profits of said
It is therefore recommended that the former opinion of this court and the decree of the district court be vacated; that a decree be rendered in this court in conformity with this opinion; that the Huxtables pay the costs in the district court and the Hobson heirs pay the costs in this court, and that a special mandate issue to the district court for Adams county to carry this judgment into execution.
By the Court: For the reasons stated in the foregoing opinion, the former opinion of this court and the decree of the district court are vacated, and a decree will be rendered in this court in conformity with this opinion; that the Huxtables pay the costs in the district court, and the Hobson heirs pay the costs of this court, and that a special mandate issue to the district court for Adams county to carry this decree into execution.
Judgment accordingly.