82 Neb. 207 | Neb. | 1908
This is an action by a husband ostensibly for the recovery of an estate by the curtesy in lands in which his dedeceased wife was seized of an undivided share. The defendant Willielmina Glockel was the widow of Johann G. Glockel, who died in 1901 intestate, leaving him surviving the said widow, a daughter, Bose Mathews, wife of the plaintiff, and four other children. At the time of his death he was the owner of a farm in Otoe county containing about 100 acres, upon which his widow, the defendant, continued to reside. In 1905 Bose Mathews filed a petition in the district court for Otoe county for partition of said property; but the summons in said action was returned not served at the direction of the plaintiff, and the said Bose Mathews, together with the four other heirs of Johann G. Glockel, on the 19th day of May, 1905, entered into a written agreement whereby they agreed to and with each other and with Willielmina Glockel, widow of the said Johann G. Glockel, that they would not during the lifetime of the said Willielmina Glockel partition, divide, nor ask for a partition-or'division of the lands of which the said Johann G. Glockel died seized. The said agreement was expressed to be in consideration of the love and affection of the children for their said mother; and it also appears that the mother paid Bose Mathews the sum of $100 either for the dismissal of said partition suit or for the signing of said agreement, or both. In August, 1905, the said Bose Mathews died without issue. This suit ivas brought by the plaintiff, her husband, to, in the language of the prayer of his petition, recover and hold a one-fifth interest in said premises for and during his natural life as tenant by the curtesy. There ivas a trial to the court, who found substantially the foregoing facts. The court further found as conclusions of law: . (1) That the said agree
1. It is clear that Rose Mathews; but for the making of the agreement referred to, might have maintained partition; and it follows that her husband, upon her death without issue, under the statute in force at that time, would have been entitled to the possession of her share as tenant by the curtesy, and might himself have maintained partition had she been entitled to do so. But, by the agreement referred to, Rose Mathews covenanted with her mother and her brothers and sisters that she would not during the lifetime of her mother partition or divide nor ask for a partition of these lands. No reason is suggested why this was not a valid agreement, binding upon Rose Mathews during her lifetime. It was evidently entered into by the children with the laudable intention of making suitable provision for their mother. Their love and filial affection was a sufficient consideration therefor; but it appears that Rose Mathews received as an additional inducement the pecuniary consideration of $100 paid by her mother.
2. The plaintiff contends that his action is not for partition. He argues: “The plaintiff is not seeking to partition the land, but only to have his right of curtesy therein as provided by law, and the fact that his interest in the land might have to be set off or apart to him does not make the action one in partition.” The answer to this proposition is that, if to give the plaintiff the relief he demands it would be necessary to partition the land, then the action is one for partition. He fails to point out any relief to which he claims to be entitled that is not a part of the relief in partition. The ordinary judgment of partition confirms the title of the respective parties and orders that a division be made among them accordingly. Unless this or some part of this relief is awarded to. the plaintiff, it is impossible to give him anything in this action. It is the general rule that the present right of possession is a prerequisite to the right to maintain partition. Wicker v. Moore, 79 Neb. 755. Even in those states where this rule
We therefore recommend that the judgment of the district court be reversed and the plaintiff’s action dismissed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court, is reversed, with instructions to dismiss plaintiff’s action.
Reversed.