63 Neb. 630 | Neb. | 1902
The plaintiffs brought this action to quiet their title to certain lands in Nuckolls county. The court made specific findings, which are too long to set out at length, nor do we deem it essential to a proper understanding of the case that they should be. Such findings in effect are as follows: (1.) In 1870, Jacob Shoff made a cash entry of
It will be seen from the foregoing that, aside from questions arising under the recording act, the plaintiffs stand in. the shoes of William Bare, the grantee of the original entryman, Jacob Shoff, and the defendants Mary J. Lyon and Clara J. Harta, to the extent of their respective claims (the former as owner of the fee, the latter as her mortgagee) in those of the said Jacob Shoff, and that the rights of the said parties plaintiff and defendant are to be determined by precisely the- same rules that would apply were William Bare the plaintiff and Jacob Shoff the defendant in this suit. As between the last named parties a discussion of the questions whether Shoff’s title was perfect at the time the patent issued to him, and whether the subsequent cancelation of such patent Avas authorized, and operated to divest his title, would be wholly immaterial. Shoff’s conveyance to Bare purported to convey the title in fee .simple. He thereby not only conveyed such title as he had at the time, but also estopped himself from asserting, as against his grantee, any title under the patent subsequently issued to himself. Whatever title he took by such patent inured to the benefit of such grantee. This is elementary. Hence, Avere this an action between William Bare as plaintiff, and Jacob Shoff as defendant, the patent issued to the latter, whether its subsequent cancelation was effective or not, would constitute no defense.
If the defendants Mary J. Lyon and Clara J. Harte
In this case both these defendants knew that a patent from the United States, the source of all our land titles, was lacking in the chain of title of their grantors. That, of itself, was a most arrestive fact, and one calling loudly for explanation. No such patent appeared on the records of Nuckolls county. It seems to us that in the face of
Wé do not overlook the fact that the books of the local
It is urged that the plaintiffs were out of possession, and for that reason an action to quiet title would not lie. This court has held otherwise. Eayrs v. Nason, 54 Nebr., 143. But counsel cite Snowden v. Tyler, 21 Nebr., 199, 215, in which this court says that in the trial of titles * purely legal, the plaintiff out of possession and the defendant in possession, either party is entitled to submit questions of fact to a jury. There is no conflict between this case and the one next preceding it in our citations. In this case there was no demand for a jury, no) refusal to grant one, nor any exception saved. It is true, the defendants pleaded as a defense that the court had no jurisdiction as a court of equity to try the case, and that each of the defendants was entitled to a jury. But some of the issues were equitable, and, were there any purely legal issues, properly triable to a jury, the defendants should have pointed them out, and asked their submission to a jury. They did not do this, and for that reason are not now in a position to complain. It should be kept in mind that there is no such thing as a court of equity in this state. We have a district court, which has common law jurisdiction and equity powers. When its jurisdiction is
It is urged further that the plaintiffs were guilty of laches in not asserting title to the land earlier, and in not talcing some step to give notice of their claims. The plaintiffs and the Shoff heirs under whom the defendants claim were about equally diligent in these matters. The assertion of title by the latter was shortly followed by the assertion of title by the former. If the laches of the plaintiffs is to be visited with such severe penalties, what shall we say of a purchaser, with notice, from those who have been guilty of like laches? The equities between the parties are not such as to warrant the application of the doctrine of laches in this case.
We recommend that the decree of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is
Affirmed.