64 Neb. 814 | Neb. | 1902
' John D. Knight, as executor of Helena V. W. Knight, brought this action against Denman and another to recover possession of a tract of 820 acres in Butler county. He alleges that on and prior to the 25th day of April, 1898, said Helena Y. W. Knight was the owner and entitled to the immediate possession of said land; that she died on or about said 25th day of April, 1898, leaving a last will and testament, in which plaintiff is named as executor; that he was duly appointed executor, pursuant thereto, by the county court, qualified and entered upon his office, and is entitled to the possession of said premises. He further alleges that the defendants unlawfully heei") him out of possession. The defendant Denman, in his answer, denies the several allegations of the petition seriatim in their very words, and adds a plea of adverse possession and the statute of limitations. Issue having-been joined by reply, a trial was had, resulting in a verdict and judgment for the defendant. The plaintiff brings the cause here on error.
Plaintiff did not prove title at the trial, and the first-question to be met is whether such proof was necessary under the pleadings. Where there is a general denial, or the allegations of title in the plaintiff are otherwise denied, it is Avell settled that plaintiff must establish a
Harden v. Atchison & N. R. Co., 4 Nebr., 521; Kuhland v. Sedgwick, 17 Cal., 123; 1 Ency. Pl. & Pr., 798. The answer in the case at bar is particularly obnoxious to this objection. It denies that Helena V. W. Knight “on and prior to the 25th day of April, 1898, was the owner in fee simple and entitled to the possession of” the land in controversy, and denies that she died “on or about” said date. This is entirely consistent with ownership after April 25, 1898, and before she died, and also with ownership before and at said date, and at her death, subject to a right of possession in someone else as tenant or licensee. Plaintiff was not put on proof of title by such denials.
We think one of the instructions of the court which is excepted to so palpably wrong that it is not necessary to consider any of the other errors assigned. In this instruction the court stated that if the owner of lands does not bring an action against one who wrongfully withholds possession within ten years after his cause of action accrues he loses his right to bring or maintain such action. This proposition is made very emphatic by an explanation which is added, to the effect that the right of action is lost unless action is brought within ten years from the time the owner had a right to bring it, provided the defendant invokes the protection of the statute. ’ It is obvious that, without adding that defendant’s possession must be continuous, open, notorious, exclusive and adverse
But counsel argue that the verdict rendered was the only one that could be rendered under the evidence, and hence that the judgment must be affirmed without regard to errors occurring at the trial. Jeffres v. Cashman, 42 Nebr., 594; Everett v. Hobleman, 15 Nebr., 376. The action was brought in October, 1898, and defendant claims to have entered upon the land and taken adverse pos
We therefore recommend that the judgment be reversed and the cause remanded for a new trial.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause is remanded for a new trial.
Reversed and remanded.