84 Neb. 98 | Neb. | 1909
The Schuster family came to the United States from Austria in 1877, arriving in Platte county, Nebraska, in midsummer of that year. The members of the family involved in this action consist of the four sons, Anton, Julius, Louis and Herman, who were all minors when they came to America; Anton, the eldest, then being about 15 years of age. After a brief residence in Columbus the family, consisting of the parents, the four sons, and one or more minor children who are not involved in this suit, moved onto a rented farm in Platte county upon which they resided and farmed until 1885 or 1886, when- the
This action was brought in Polk county by Herman Schuster, plaintiff and appellee, the youngest of the brothers, and who is hereinafter called the plaintiff, for an accounting of rents and profits and for a partition of 320 acres of farm land in Polk county, purchased, as' he alleges, and paid for jointly by him and his brothers, the record title thereof standing in the name of himself and the defendants.
In June, 1899, the plaintiff, who testifies he was then 27 years of age, went to the city of Columbus to engage in the business of manufacturing scales, and it appears the father and the sons were then the owners of three quarter sections of land, one quarter section being the home farm with the title in the name of the father, and a half section with the title in the names of the four sons jointly, and in which latter tract the father has no claim or interest, about $3,600 in cash, and a considerable amount of personal property, all of the land having been bought and paid for by the joint earnings of the family and from the sale of the products of the farms. The ownership of the half section of land standing in the names of the Schuster brothers, parties hereto, and the right of plaintiff to participate in the rents and profits arising therefrom are the questions in dispute between the plaintiff and the defendants.
In his petition the plaintiff alleges, in substance, that himself and the, defendants, Anton, Julius and Louis
The defendants filed a joint answer, denying generally the allegations of the petition, and alleging that on May 26, 1890, the defendants Anton and Julius Schuster purchased and paid for said section 13; that “title to said premises * * * was taken in the name of A., J., L. & EC. Schuster Bros.”; that in February, 1893, defendants Anton and Julius Schuster purchased said section 11 for $4,400, and that “title was taken in the name of defendants Anton Schuster, Julius Schuster, and Louis Schuster and plaintiff Herman Schuster,” in pursuance of an agreement with plaintiff, which reads: “May 26, 1890. It is herewith agreed that Louis and Herman Schuster may, after they become of age, obtain for home purpose from Anton and .Julius Schuster a part of N. W. 13-15-3 by paying the purchase price for it. (Signed) Anton Schuster, Julius Schuster, Louis Schuster, Herman Schuster”; that it was the understanding between the parties that plaintiff would assist in the work and management of the land, so that by united effort they might accumulate property and build up a large and profitable business; that the written contract and oral agreement were made “for the purpose of encouraging said Herman Schuster in said work, and upon the express promise of said Herman Schuster as above set forth, and, relying thereon,” that the defendants Anton and Julius Schuster consented that legal title to an undivided one-fourth part of said premises be taken in the name of plaintiff; that plaintiff has always failed “to perform his part of said contract, and has never contributed one cent toward the payment of the mortgage assumed as a part of the purchase price of one of the
Plaintiff’s reply denied all the material allegations of new matter in the answer, admitted title to the land was taken in the name of plaintiff and defendants, alleges he was a minor when the written contract was entered into, and that he was never bound thereby.
Upon the issues thus presented, the district court, upon trial, rendered judgment of partition in favor of plaintiff and against the defendants, finding and decreeing that plaintiff was an owner of an undivided one-fourth part of the premises involved herein. Upon the question of rents and profits, judgment was rendered against the plaintiff and in favor of the defendants. The usual exceptions were taken by each of the parties, and the cause is brought here for review.
After a careful examination of the entire record, we are convinced the proofs sustain the material allegations of plaintiff’s petition. Anton vigorously contends the 320 acres in dispute were bought and paid for without any contribution of either time or money from the plaintiff, but two of his own letters, one under date of June 1, 1906, and one under date of June 16, 1906, written by him to Herman, utterly refute his contention on this vital point. In the letters he corroborates the testimony of plaintiff in almost every essential particular. The course of Anton’s testimony is so devious that he is met at almost every material point by contradictory statements formerly made by himself in his letters to Herman.
The plaintiff testified that a settlement was had between himself and his father and his brothers concerning the cash on hand in the common family fund just before his departure for Columbus in 1899, and that the money then apportioned among them was derived in large part from the sale of farm products from the father’s 160 acres and from the 320 acres owned by the four boys. He testi
The defendants undertake to explain the reason why the first tract was taken in the names of all of the brothers jointly in 1890, and to this end, besides- oral testimony, they introduce as exhibit 4 the original contract that is set out in full in the outline of defendants’ answer in this opinion. This instrument is of doubtful validity. When it was dated, plaintiff was yet a minor, and he testified he had no recollection of signing it. Besides, the proof shows the tract then purchased was paid for by the contributions of all the brothers. Cameron v. Nelson, 57 Neb. 381; Dailey v. Kinsler, 31 Neb. 340; Pillsbury-Washburn Flour-Mills Co. v. Kistler, 53 Minn. 123; Hansen v. Berthelsen, 19 Neb. 433
The defendants’ attempted explanation of their reasons for taking the second tract in the names of the four brothers in 1893 is even less satisfactory than their attempt to explain the purchase of the first tract in that manner. When the second tract was purchased, a part of the purchase money was paid at the time, and notes and a mortgage' given by all the brothers for the deferred payments, and the obligations so incurred were paid by all of them.
The plaintiff alleges that defendants have exclusively used and occupied the half section of land in dispute for eight years, and he contends that he is entitled to remuneration for his share of the premises so occupied by them in the sum of $160 annually. The answer alleges, and the proof clearly shows, that the defendants denied plaintiff’s title and exclusively occupied and used the land continuously ever since the year 1899. The proof also shows the defendants not only alone occupied the common property, but they held possession thereof adversely under a claim of sole ownership to the exclusion of their cotenant from the enjoyment of any part of the premises, thus bringing themselves substantially within the rule announced by this court in Names v. Names, 48 Neb. 701, which holds: “A tenant in common who alone occupies the common property, and holds possession adversely as sole owner, or where he excludes his cotenant from the enjoyment of the premises, is liable to his cotenant for the rents and profits.” The doctrine of the Names case, supra, which was unknown to the common law, finds support in many jurisdictions, and among them are the following : Edsall v. Merrill, 37 N. J. Eq. 114, which holds: “A tenant in common who prevents his cotenants from obtaining from the premises held in common their just shares of the income the premises are capable of yielding, or who takes possession of the whole, and uses them as his own, and thereby makes a profit, is bound to account to his cotenants either for the rental value of the premises or the profit he has made.” See, also, Roberts v. Roberts, 55 N. Car. 128; Woolley v. Schrader, 116 Ill. 29. Medford v. Frazier, 58 Miss. 241, holds: A cotenant “will
It is therefore ordered that so much of the judgment as is in favor of the defendants be, and it hereby is, reversed and the cause remanded, with directions to take an accounting of the rents and profits of the land in controversy herein for a period of four years next before the beginning ,of this action, and to render a judgment in favor of plaintiff and against the defendants therefor in such amount as plaintiff may be entitled to recover in accordance with the views expressed in this opinion, and that in all else the judgment of the district court be, and it hereby is, affirmed.
Judgment accordingly.