33 Neb. 775 | Neb. | 1892
This action was brought in the district court of Douglas county by the plaintiff against the defendant to recover the possession of “outlots” 226. and 227 in the city of Florence. The answer contained, first, “a general denial”; second, “a plea of title in the defendant, and the statute of limitations.” To this answer a reply was filed setting forth, among other things:
“ First — A denial that the statute had barred the action.
“Second — Further replying, plaintiff alleges that said defendant is now, and for fifteen years last past has been, a non-resident of Nebraska, and has visited this state at intervals, remaining here but a few days at a time, the aggregate of which time, during said period, would not exceed ninety days.
“Third — -That the lots described in the answer lie within a general inclosure, including eighty acres and upwards, composed of numerous and similar lots, some of which defendant owns in fee, others he holds as co-tenant of an undivided moiety, and others still that he neither holds nor claims to hold adversely.
“Fourth — That said lots lie within the corporate limits of the city of Florence, and, as designated on the recorded plat thereof, are entirely surrounded by streets dedicated to the public, and that the fence comprising the general inclosure, as above stated, is not on the line of said lots, nowhere touches any of them, and that none of said lots are inclosed or surrounded by a fence.
“Sixth — That neither said defendant nor any one else has been in the actual possession of said premises at any time during the period mentioned in said answer. The testimony shows that the defendant lived in the city of Florence and at his home just outside of Florence, which
The testimony shows that in the year 1865 defendant received and placed upon record a tax deed to said “out-lots ” 226 and 227, and paid the unpaid taxes against them, which extended back to the year 1859, and has ever since paid the taxes thereon; that in the spring of 1866 he sowed these lots with blue grass seed and subsequently used the same as a pasture, for which they are best adapted and most profitable. At first his stock was herded upon these lots every year, excluding the claims of all others, and later the lots were inclosed by a substantial fence in 1873 and 1874, and they have been kept fenced and been used as a pasture all the time to the commencement of plaintiff’s action.
In Blodgett v. Utley, 4 Neb., 25, the case of Sage v. Hawley, 16 Conn., 106, was cited with approval so far as it relates to a suspension of the running of the statute, and it was held, in effect, that if the right to bring an action during the defendant’s absence was not suspended that the statute was not available as a defense. That case has not, so far as we are aware, been questioned. The question was carefully considered and we believe the decision is right, and it will be adhered to.
Now, aside from section 17 of the Code, was the right of action suspended during the defendant’s absence? We
Affirmed.