Sluyter v. Schwab
73 Neb. 370
Neb.
1905
Check Treatment
Oldham, C.

This was an action in ejectment by George W. Schwab, plaintiff in the court below, against Leroy B. Sluyter, defendant in the court below, to recover possession of two feet off the south side of lot 2, block 3 of Dickson’s addition to the village of Clay Center, in Clay county, Nebraska, and $100 damages for the unlawful detention of the premises. The facts underlying the controversy are that lots 2 and 3 in block 3, in Dickson’s addition to Clay Center are contiguous lots, 2 lying north of 3, After the addition was platted and recorded Dick*371son conveyed lots 2, 3 and 4 of block 3 by warranty deed to one CoAven, aaIio had a house erected on the north line of lot 3, Avhich projected OArer and beyond the lot line from one to two feet. This house was erected in 1886. In March, 1887, CoAven conveyed the three lots by Avarranty deed to James Kinkaid, and on December 8, 1890, Kinkaid conveyed lot 3 by Avarranty deed to defendant Sluyter, and on April 3, 1899, he also conveyed lot 2 by Avarranty deed to plaintiff Schwab; after plaintiff Schwab had purchased lot 2 a difference arose as to the location of the boundary line between the two lots. Schwab procured a survey of the lots Avhich fixed the boundary line two feet south of the line contended for by Sluyter. Sclrvab thereupon brought his suit in ejectment to recoArer possession of the disputed strip. This suit was instituted on the 4th day of December, 1900. Sluyter filed an answer to the petition Avhich, in substance, amounted to a general denial and a plea of adverse possession. At the trial of the cause a jury was Avaived by both parties, and the cause tried to the court, and a judgment rendered finding generally for the plaintiff on his petition. On this judgment and finding the clerk of the court subsequently entered a judgment for $100 damages for the unlawful detention of the premises against defendant Sluyter. A motion for a new trial Avas filed by defendant and overruled, and error proceedings instituted in this court to reverse the judgment. After these proceedings had been instituted, counsel for plaintiffs in the court below filed a motion to have the judgment corrected by a nunc pro tunc entry and judgment entered finding the issues in favor of the plaintiff for the possession of the land in controversy, without any judgment for damages for the unlawful Avithholding of the premises. This corrected judgment Avas entered over the objection of defendant Sluyter.

The first error called to our attention is that the judgment in favor of plaintiff is unsupported by the evidence. This objection is based on the theory that defendant Sluy*372ter was entitled, to tack his possession of lot three to that of his grantor Kinkaid, and that when this possession was so tacked, it clearly showed that he had been in adverse possession of the premises for more than ten years before the filing of the petition. The fallacy of this contention is apparent from the fact that Kinkaid during his occupancy OAvned both the lots in controversy, and his possession of one was in nowise adAmrse to his claim of OAvnership of the other. . No adverse holding was begun until Kinkaid conveyed lot three to defendant Sluyter; from the date of that conveyance the statute began to run against Kinkaid and his subsequent grantor and in favor of Sluyter, and not until then. To tack the possession of a grantee to that of a grantor it must be against some one to whom the grantor held adversely.

It is next contended that the judgment should be reversed because the premises were occupied as a homestead by defendant Sluyter, and his wife was not made a party defendant in the action. But there is no evidence in the record tending to show that defendant Sluyter ever had a wife, or that he ever occupied the promises as a homestead.

It is conceded that there is no evidence to support the finding of the district court, -in awarding $100 damages for the unlawful occupancy of the premises by the. defendant Sluyter. Consequently the judgment was clearly erroneous for this reason at the time error proceedings were instituted in this court. The only injury however which defendant could suffer from this erroneous judgment would be the costs which he expended in procuring a revieAV of the cause in this court before its attempted correction in the court below.

We therefore recommend that the judgment of the district court be reversed and the cause remanded, Avith directions to the court below to enter a judgment in favor of plaintiff for the possession of the premises in dispute, and one cent damage for the unlawful detention thereof.

Ames and Letton, CC., concur.

*373By the Court: For the reasons stated in the foregoing opinion the judgment of the district court is reversed and the cause is remanded, with directions to the court below to enter a judgment in favor of plaintiff for the possession of the premises in dispute, and one cent damage for the unlawful detention thereof.

Reversed.