82 Neb. 732 | Neb. | 1908
In 1892 David J. Kazebeer died testate in Saline county, Nebraska, seized in fee simple of 400 acres of land. His Avill, Avhich Avas duly probated, provided: “It is my wish and desire that the rest, residue and remainder of my property, both real and personal, be divided equally between my children, share and share alike, but I further request that such division of the property be not made
1. Plaintiff argues that the will of the deceased prohibited a partition of the land until all of the testator’s children Avere adults; that the petition in partition did not state facts sufficient to constitute a cause of action in plaintiff’s favor, and that the judgment of partition was null and void, of which fact all persons claiming title through said proceedings had notice. Numerous authorities are cited to establish that the courts will not partition land if the will of the owner postpones a division until a certain day. The cases arose upon a request for the con
The plaintiff in her petition prayed for partition. She thereby tendered the issue of whether she and the minor defendants were cotenants of the land, and Avhether she was entitled to a partition thereof, and a decision in her favor would be valid until reversed in some proceeding known to the law. Oliver v. Montgomery, 39 Ia. 601; Edson v. Munsell, 12 Allen (Mass.), 600; Herr v. Herr, 5 Pa. St.. 428, 47 Am. Dec. 416; Brandhoefer v. Bain, 45 Neb. 781; Staats v. Wilson, 76 Neb. 204. In the Nebraska cases last cited, the court proceeded in partition under a lavv that was unconstitutional and void, and yet the decree was held good on collateral attack. In neither of said cases did the facts stated entitle plaintiff to the relief awarded, but the court had jurisdiction of the subject matter and of'the parties, and its judgment was upheld. It is not contended that the parties to the Kazebeer partition suit were not vested with title to the land in question, nor that they would not eventually.be entitled
Plaintiff also argues that the judgment in partition is void because documentary proof of title to support the petition was not filed with the clerk of the district court in conformity with section 809 of the code. The decree in partition recites that the case came on for consideration on “the pleadings, evidence and testimony.” There is nothing in the record of this case to show that docu
Plaintiffs has not made any of the parties to the original judgment defendants herein, but their successors in interest only. Plaintiff does not contend that a money judgment could be recovered against plaintiff in the partition suit, even if the judgment should be reversed, and disclaims any intention to ask therefor, but asserts that the present owners of- the land and the land itself are the sole objects of pursuit herein. We therefore consider 'this case as affecting the rights only of the purchasers of the land. All sales made by order or decree under the direction of the court and requiring confirmation by the court are judicial sales. Rorer, Judicial Sales (2d ed.), sec. 29. A partition sale is a judicial sale. Burden v. Taylor, 124 Mo. 12, 27 S. W. 349. Section 508 of the code provides: “If any judgment or. judgments, in satisfaction of which any lands or tenements are sold, shall at any time thereafter be reversed, such reversal shall not defeat or affect the title of the purchaser or purchasers; but in such case restitution shall be made by the judgment creditor of the moneys for which such lands or tenements were sold, with lawful interest from the day of sale.” Counsel argue that said section does not have reference to proceedings by an infant to vacáte an erroneous judgment against it. In a well reasoned opinion written by Mr. Commissioner Irvine, in Manfull v. Graham, 55 Neb. 645, it was held that the word “reversal” in section 508 of the code applied to the action of any court vacating a judgment, and that the policy of the law was to protect purchasers at sales under judgments which had been rendered by courts of competent jurisdiction, no matter how erroneous might be the proceedings leading up thereto. To hold otherwise would work incalculable injury, and depreciate every parcel of land offered ai judicial sale. The authorities cited by plain
2. A different question is presented as to the defendants Dorman and the south half of the southeast quarter of section 12, in town 5, range 1, east of the sixth P. M. Said land was purchased by plaintiff’s guardian, Richard E. Hall, and defendants Dorman hold title thereto by virtue of said transaction. It is a well-settled rule of law ihat a purchase by a trustee or agent of the particular property of which he has the sale, or in which he represents another, carries fraud, on the face of it. Michoud v. Girod, 45 U. S. *503; Carpenter v. McBride, 3 Fla. 292, 52 Am. Dec. 379; Winter v. Truax, 87 Mich. 324, 24 Am. St. Rep. 160; Frazier v. Jeakins, 64 Kan. 615, 57 L. R. A. 575; Veeder v. McKinley-Lanning L. & T. Co., 61 Neb. 892. Richard E. Hall answered in the partition suit as guardian for the infant defendants. The referees reported that they had sold 80 acres of the land to Richard E. Hall, and there was nothing upon that record to evidence that said purchaser had ever applied to the court for permission to bid at the sale. All persons dealing with the title were warned that Hall represented not only infants, but those of very tender years, and that it was his solemn duty under the statute to conserve and protect the estate of his wards. No one purchasing that land
3. It is urged that inasmuch as the one-eighth part of the proceeds of the sale of said 80 acres was accounted for by the guardian, and his accounts duly settled by order of the probate court after notice to and appearance by plaintiff after he attained his majority, said judgment is a bar to this action. It is not suggested, nor could it be successfully maintained, that the claim or demand in the instant case is identical with that presented in the county court, and therefore we are not to consider the answer of the Dormans as a technical i>lea in bar. Bering v. School District, 76 Neb. 219. It remains to be ascertained whether any of the points tried and determined in said accounting- constitute an essential element of plaintiff’s cause of action or defendants’ defense herein. Referring to the principle that a fact once litigated between parties shall thereafter not be controverted by
4. It is suggested that part of the proceeds of said salt1, have been applied in maintaining plaintiff during his infancy. In the state of the record we are not advised as to the exact fact. No bill of exceptions was settled, and the transcript of what purports to be a stipulation of fact cannot be considered by us, so we must be guided by the pleadings and the decree. If it did affirmatively appear that the guardian applied some of the proceeds of the sale of said land for plaintiff’s benefit during his i-nfancy, that fact would not be any defense to this action.
5. The defense of adverse possession cannot be maintained because Hall’s possession had its inception during plaintiff’s infancy, and this action was commenced Avitliin a ferv months of his majority. Citations are not necessary to sustain this self-evident principle of law.
6. We are not altogether certain that defendants challenge the form of these proceedings, but the action seems to have been properly instituted as to the Dormans at least. Hall’s conduct was fraudulent as to plaintiff’s rights, and the decree might be impeached for that reason and to that extent. Such seems to be the laAV in Illinois.
loyd v. Kirkwood, 112 Ill. 329. In Nebraska the distinctions betAveen actions at law and suits in equity and in the forms of such actions are abolished, and but one form of action is recognized. Code, sec. 2. It therefore is immaterial Avhether the action is prosecuted under the code or one of the recognized heads of equity jurisprudence, proAdded the facts alleged bring the plaintiff within either jurisdiction. It appearing that parties other than the guardian Avere asserting an interest in the 80 acres of land noAV claimed by the Dormans, and that complete relief could not be given Avithout cancelation of deeds and an accounting of rents and profits, and that the impeachment of the decree would only be a predicate to- further and necessary relief, this action Avill lie. The judgment of the district court Avas erroneous to thé extent that it denied plaintiff relief as to the Dorman real estate, but correct as to the remainder of the land sold in the partition proceedings.
It is therefore recommended that the decree of the district court be affirmed as to defendants Nunemaker and as to the land referred to in the pleadings as situated in section 7, but that it be reversed and the case remanded for further proceedings as to defendants Dorman and the south half of the southeast quarter of section 12, in town 5, range 1 east of the sixth P. M., in Saline county.
Judgment accordingly.