57 Neb. 352 | Neb. | 1899
Tbe litigation between Lánsing and Henry Oliver lias vexed tbe courts for years. A serial history of it will be found in tbe cases of Oliver v. Lansing, 18 Neb. 338, Oliver v. Lansing, 50 Neb. 829, arid Oliver v. Lansing, 51 Neb. 818. This appeal'is a proceeding in tbe suit for partition, and brings here'for review tbe judgment of tbe district court confirming tbe referee’s report on incumbrances, and directing distribution of tbe fund obtained from tbe sale of tbe real estate in controversy. The main question presented for decision grows out of tbe .conflicting claims of tbe plaintiff’s creditors to his share of the fund. His brother, William Oliver, claims it under a mortgage executed to him during the pen
“Sixth — The court further finds that defendant James F. Lansing, on the 26th day of June, 1893, recovered in this court a judgment against the plaintiff Henry Oliver for the sum of $9,673.66; that within twenty days thereafter plaintiff filed a supersedeas bond in said action in double the amount of said judgment, which was approved by the clerk, and said action is now pending on appeal in the supreme court; that said judgment is a lien upon plaintiff’s interest and share in said real estate, but that by reason of such appeal and filing and approval of said bond is not now enforceable, but that the lien of said Lansing pending such appeal should be saved, and the amount of said judgment lien, in case said premises be partitioned without sale, should be charged, subject to the finding of the supreme court on said ap*355 peal, upon the parcel set off to plaintiff in severalty, or, in. case of sale, upon the share of the proceeds of said plaintiff, to be withheld on distribution from plaintiff till said appeal is determined, then to be distributed accordingly as the rights of said parties may be determined on said appeal.”
Afterwards the plaintiff, claiming that the judgment mentioned in the foregoing finding had been reversed by this court, asked for the appointment of a referee to inquire into the nature and amount of incumbrances on the property and make a report concerning the same. The matter was referred to Edward P. Brown, Esq., who found and reported: (1) That on June 26, 1893, in a separate action for an accounting then pending in the district court of Lancaster county, James F. Lansing re-' covered judgment against Henry Oliver for the sum of $9,673.66; (2) that said judgment, on appeal to this court, was reversed on May 6, 1896; (3) that on February 23, 1897, the judgment rendered by the district court in the collateral suit was modified by reducing the amount thereof to $5,610.36; (4) that this judgment, being brought here for review on error, was reversed on June 3, 1897, and a judgment rendered in this court for $7,156.17; (5) that the last mentioned judgment was, pursuant to the mandate, entered in the district ■ court on October 30, 1897; (6) that on January 29, 1897, Henry Oliver and Julia Oliver, his wife, executed to William Oliver a warranty deed conveying the premises in controversy as security for a Iona fide indebtedness amounting to nearly $30,000; (7) that William Oliver took said conveyance with notice of the proceedings in this action “and subject to the decree therein pronounced;” (8) that the deed to William Oliver was duly recorded February 10, 1897. Upon these facts the referee reached the conclusion that the mortgage of William Oliver was a lien on the fund in question, subject to the lien of Lansing’s judgment for $7,156.17. The trial couit approved this conclusion, but its correctness is challenged by the appeal.
Another complaint of the appellants relates to the disposition made of certain claims Avhich accrued to the plaintiff against the defendant during the pendency of the litigation. From the report of the referee it appears that subsequent to the entry of the decree confirming the shares of the parties and directing partition to be made the plaintiff paid, to discharge taxes and reduce incumbrances on the joint estate, the sum of $2,958.03 more than. Avas paid by the defendant for the' same purpose. Half of this amount, being §1,479.02, was credited on the judgment in favor of Lansing. The objection to this action of the trial court is that, in effect, and by indirection, it gave to Lansing a prior lien on Henry Oliver’s share of the fund, to the extent of the amount so credited. But of this neither of the Olivers is in a position to complain. In the absence of an' explicit finding to the contrary we assume that the mortgage to William Oliver purported to coArer nothing more than Henry Oliver’s undivided half-interest in the land. Lansing and Henry Oliver being joint and equal owners of the property,
The plaintiff further complains of the action of the court in denying his motion to have his counsel’s fees taxed as costs. Section 841 of the Code of Civil Procedure is as follows: “All the costs of the proceedings in partition shall be paid in the first instance by the plaintiffs, but eventually by all the parties in proportion to their interests, except those costs which are created by contests above provided for.” It was said in Stanton County v. Madison County, 10 Neb. 304, that statutes giving costs “are not to be extended beyond the letter, but are to be construed strictly.” The term “costs,” in its common acceptation, does not include attorney’s fees, and whatever may be the rule in friendly actions for partition, we are- entirely clear that there is no authority under the section quoted for taxing such fees in cases like this where the plaintiff’s title or right to partition is contested. If this were not so, as was said in Swartzel v. Rogers, 3 Kan. 380, “the more doubtful the plaintiff’s right of recovery, the greater shall be the defendant’s liability to plaintiff’s counsel for costs.” In Hutts v. Martin, 134 Ind. 587, it was held that a statute providing for the taxation of all costs and necessary expenses against the partitioners was not broad enough to cover a liability for attorney’s fees incurred in prosecuting an action for partition. In Kilgour v. Crawford, 51 Ill. 249, construing a statute providing for the alloAvance of coun
Judgment accordingly.