71 Neb. 160 | Neb. | 1904
Lead Opinion
This is an appeal from a decree quieting in the plaintiffs the title to certain real estate. On the 8th day of September, 1887, Tliomas Tindall died intestate, and seized in fee of the lands in controversy, subject to two mortgages aggregating in amount $552.50. He left surviving him a widow, Sarah J., and five minor children. Of the latter, three have since died without issue, and the survivors are the plaintiffs and appellees in this action. At and before the death of Thomas the lands were occupied as a homestead by himself and his family. The widow was appointed sole administratrix of his estate, and applied to the district court for, and obtained, a license to sell the* homestead, or so much thereof as should be necessary for ihe payment of the mortgage' debts, and of certain other claims proved and allowed against the estate of the deceased. The order granting the license required the execution of a, bond to account for the proceeds of the sale, as is provided by section 75 of chapter 28, entitled “decedents,” of the Compiled Statutes (Annotated Statutes. 4949). The administratrix executed such a bond, which was approved by the court, but, before the sale, she resigned her trust, and one Thomas B. Keedle was appointed to succeed her (herein. It does not appear that Keedle executed a like bond, though he may have done so; the proceedings were not entered upon the journals of the court, and such pa
The district court adjudged all the above mentioned proceedings and conveyances to be void, and to be canceled, and quieted the title to the premises in the plaintiffs. That they Avere ineffectual to convey the legal title or to deprive the heirs at Iuav of their reversionary estate in the "lands, we are ourselves convinced. It has been held by this court, that the estate; Avhieh vests in the widow and children/ in lands selected from the property of the husband,,-And occupied as a homestead at the time of his death, is .Absolute, and can not be lost by abandonment, or de-vested by sale upon execution on a judgment against the husband. Durland v. Seiler, 27 Neb. 33; Baumann v. Franse, 37 Neb. 807.
In Guthman v. Guthman, 18 Neb. 98, the court go so far as to say, in effect, that the homestead estate can not be conveyed or alienated by the AvidoAV, in any manner, during the minority of the children, or of any of them, and ii appears to us that such is the correct doctrine, because,
But there is a further contention that only a part of the lands sold were included within the homestead exemption. There are two 80-acre tracts, being, respectively, parts of different governmental subdivisions, but contiguous along their whole length, and separated only by an imaginary line. The dwelling house and other buildings and appurtenances were all on one of these tracts, but both were used and cultivated, indiscriminately and together, for the support of the deceased and his family, and the combined value of the two was very much less than $2,000, the amount exempted by the statute. The act exempts “the dwelling house in which the claimant resides and its appurtenances, and the land on which it is situated, not exceeding 160 acres,” etc., and it is argued that, as the buildings were situated upon one only of these tracts, that alone constituted the homestead, and there are cited in .the brief of appellants certain authorities which seem to support this view. Woodman v. Lane, 7 N. H. 241; Kresin v. Mau, 15 Minn. 87, but we think that the greater weight of authority, and the better reason, incline to the contrary opinion. Clements v. Crauford County Bank, 64 Ark. 7, 62 Am. St. Rep. 149; Hodges v. Winston, 95 Ala. 514, 36 Am. St. Rep. 241; 15 Am. & Eng. Ency. Law (2d ed.), pages 586, 587 and citations.
The statute does not use the word tract or its cquiva-
But upon the facts disclosed by this record the appellants are not wholly without right in the premises. The statute and the selection of the homestead vested in the widow, upon the death of her husband, an estate for life, leaving a reversion in the heirs of the latter. There is no evidence of fraudulent intent on her part, or on the part of her grantees, by direct or mesne conveyance. The proceedings to which she became a party eventuated, not only in preserving her life estate, but in relieving the fee of an incumbrance which not improbably might have extinguished the reversion, and it is not unlikely that by such means she was enabled to rear and educate the children with greater comfort and care than she could otherwise have done. It is a general rule, subject to exceptions hot applicable to the case at bar, that a life tenant, who in order to preserve the estate pays off an incumbrance upon the fee, is entitled to reimbursement from the rever-sioners or remaindermen. In accordance with this rule the appellees ought not to be let into possession until they have discharged this equitable burden — that is, until they have paid, or have secured by a lien or charge upon the premises,.the amount paid in satisfaction of the mortgages existing at the death of their father, with 7 per cent, annual interest on that amount from the date of the payment. The court found that the value of permanent improvements put upon the lands by the appellants equals the value of the use and occupation of the premises since the demise of the widow, so that a further accounting for
By the Court: For the reasons stated in the foregoing-opinion, it is ordered that the judgment of the district court be reversed and the cause remanded for further proceedings in accordance Avith law, and that each party pay their oAvn costs to this date.
Reversed.
Rehearing
The following opinion on rehearing was filed May 5, 1904. Former judgment of reversal modified:
This case is before us on a motion in form for a rehearing, but which in fact calls for nothing more than a modification of the former decision of this court. The accuracy of the statement of facts in the former opinion, ante, p. 160, is not questioned, and it is not necessary to repeat them here. The first ground of the motion, which is by
There seems to be no question that the duty of a life tenant to preserve the premises from waste, includes the obligation to keep down the interest upon existing incum-brances. In case he pays the principal, the rule generally adopted is that the burden is apportioned between him and the reversioner or remainderman in such manner as that the tenant will “pay such a sum, as would equal the present value of the amount of interest he would probably have paid during his life, if the mortgage had continued so long in existence.” Tiedeman, Real Property, sec. 66. Or, as is said in Moore v. Simonson, 27 Ore. 117, “The life tenant must pay the present worth of an annuity equal to the annual interest running during the number of years which constitute the expectancy of life, the balance, after subtracting the sum thus ascertained from the incumbrance, should be borne by those in remainder.” 1 Washburn, Real Property (4th ed.), *96; 1 Story, Equity Jurisprudence (13th ed.), sec. 487; 3 Pomeroy, Equity Jurisprudence (3d ed.), sec. 1223.
But it is suggested that the right of contribution is personal to the life tenant and expires with the termination of her estate, or, at most, survives to her personal representative and can not be availed of by her successors in the possession of the premises. Ordinarily, this is perhaps true, but the right is one of equitable creation, and the
To the proposition that the reversioners are not chargeable with the value of the lasting and valuable improvements in an accounting for the value of the use and occupation, we are unable to give our assent. As AA~e have said and repeated, there is no suspicion of intentional wrong doing, but an appearance to the contrary, and, although it may be true that the heirs being minors can not be held to pay for benefits either by contract or estop-pel, yet we think that, under the circumstances of this case, a court of equity will not lend its affirmative aid to enable them to profit by the misfortunes or mistakes of their adversaries..
We are of opinion that justice, as complete as possible, will be done betAveen the parties, by so modifying the former decision of this court as to charge the appellants, as of the date when the first mortgage was paid off, with a
I!v the Court: It is ordered that the former decision of this court be so modified as to charge the appellants, as of ihe date when the first mortgage was paid off, with a sum equal to the then present- value of the amount of interest the lift* tenant, the mother, would have been required to pay during the actual continuance of her lift*, as shown by the record, and that the reversioners, the appellees, be required, before being let into possession, to pay, or charge as a lien upon the premises, the residue of the sum paid for the discharge of the mortgage, with 7 per cent, interest from the date of payment.
Judgment accordingly.