52 Neb. 597 | Neb. | 1897
This case is before us on rehearing. The former opinion, 50 Neb., 670, contains a statement of the facts, which, with one or two incidental additions, is sufficient for the purposes of the present inquiry. The former decision was based on the proposition that inasmuch as plaintiff’s father, John B. Wells, had never been appointed guardian of the plaintiff, there was no jurisdiction in the district court of Platte county to grant him a license to sell the infant’s land. Our attention is now for the first time called to certain facts which render a re-examination of that question at present unnecessary. On the death of plaintiff’s mother the law did not cast the descent immediately in plaintiff. Tie then took an estate in remainder, his father acquiring an estate for life as tenant by the curtesy. Ejectment is a possessory action. In order to recover the plaintiff must plead, and under the general issue must prove, not only a legal estate in himself, but a present right of possession. Unless both facts are established the defendant prevails. (Code of Civil Procedure, secs. 626, 627; Dale v. Hunneman, 12 Neb., 221; Staley v. Housel, 35 Neb., 160; Wanser v. Lucas, 44 Neb., 759; George v. McCullough, 48 Neb., 640.) It is therefore apparent that plaintiff could not prevail in this case, although the guardian’s sale were absolutely void, unless either the father’s life estate had determined or had -in some way passed to the plaintiff. It had not determined by the death of the life tenant; but in order to show that it had passed to the plaintiff there was introduced in evidence a deed of quitclaim from John B. Wells to Joseph S. •Wells, bearing date August 31, 1891. This operated merely to pass such estate as remained in the father at that time. Had he then any title or right which could be asserted against the defendant?
Recurring now to the proceedings and sale through
We are of opinion that under the circumstances John B. Wells wa.s estopped, both by deed and en pais, from setting up his own life estate, against the defendant, and that the estoppel continued as against his- grantee by quitclaim. There is in the deed no covenant of title or of warranty, but to create such an estoppel covenants seem unnecessary. As said by the supreme court of the United States, reviewing the authorities and enforcing an estoppel under somewhat similar facts: “If a deed bears on its face evidence that the grantors intended to convey and the grantee expected to become invested with an estate of a particular description or quality, and that the bargain had proceeded upon that footing between the parties, then, although it may not contain any covenants of title in the technical sense of the term, still the legal operation and effect of the instrument will be as binding upoq the grantors and those claiming under them, in
That an estoppel arises against the assertion of a right in oneself by reason of a conveyance made in a representative capacity, see Poor v. Robinson, 10 Mass., 131. In that case a release was made by executors purporting to act render a power in the will. The power did not in fact extend to the estate in question, and the court held that the release wa,s void. But it happened that the executors were also heirs, and the court further held that as such they were estopped from setting up title as against the release they had made as executors. (See, also, Little v. Giles, 25 Neb., 313.) The present right of the plaintiff depends not on his inheritance of the remainder, but on his father’s conveyance to Mm of his life estate. This the father and those claiming under him 'are estopped from setting up as against the prior conveyance by the father to the defendant. It follows that the judgment of the district court is
Affirmed.