Forbes v. Sweezy

• Decision Date: 24 April 1879
• Citation: 8 Neb. 520,1 N.W. 571
• Parties: MARION E. FORBES, ADMINISTRATRIX OF THE ESTATE OF PETER FORBES, DECEASED, PLAINTIFF IN ERROR, v. WILLIAM F. SWEEZY ET AL., DEFENDANTS IN ERROR.
• Court: Nebraska Supreme Court

8 Neb. 520

1 N.W. 571

MARION E. FORBES, ADMINISTRATRIX OF THE ESTATE OF PETER FORBES, DECEASED, PLAINTIFF IN ERROR,

v.WILLIAM F. SWEEZY ET AL., DEFENDANTS IN ERROR.

Supreme Court of Nebraska.

Filed April 24, 1879.

Error from Douglas County.J. L. Webster and George W. Doane, for plaintiff in error.

E. Wolseley and John D. Howe, for defendant in error.

MAXWELL, C. J.

--On the twenty-first day of January, 1876, Peter Forbes filed his petition in the district court of Douglas County, alleging “that on the ______ day of July, 1875, he became, and ever since has remained, the owner of the legal estate for the life of one Milan Hunt, as tenant, by the curtesy, and which estate still continues and is undetermined in the following lands and tenements, to wit: The east forty-four feet of lot one, in block one hundred and eighteen, in the City of Omaha, County of Douglas, and State of Nebraska, and is entitled to the possession of the same, and that said defendants unlawfully keep him out of the possession thereof,” etc. The petition also alleges that the defendants have received the rents and profits for said real estate since July ______ 1875, amounting to the sum of seven hundred and fifty dollars. The plaintiff prays judgment for the possession of such real estate, and for the recovery of said sum of seven hundred and fifty dollars.

The defendants answered the petition, alleging that on or about the twentieth day of September, 1872, said defendants Sweezy and Culbertson entered into possession of said property under a lease in writing, of about that date, made, executed and delivered in due form of law, by Elizabeth Hunt, the then owner of the fee simple of said real estate, but now deceased, whereby said premises were leased and demised to said Sweezy and Culbertson for the term of five years next after the date; that on or about the first day of May, 1873, and before the commencement of this suit, said Sweezy and Culbertson leased and demised said premises to Tyler for the remainder of said term of five years, and that Tyler entered into possession of said premises under said leasing, and has ever since remained in possession thereof thereunder.

During the pendency of the action in the district court the plaintiff died, and the case was revived in the name of Marian E. Forbes as administratrix.

In September, 1878, the case was submitted to the court without the intervention of a jury, and the court found “that the defendants, at the time of the commencement of this action, had possession of the real estate described in the petition, under and by virtue of a lease thereof, for the term of five years from and after the twenty-first day of September, A. D. 1872, executed on that day by one Elizabeth Hunt, then the wife of one Milan Hunt; that said Elizabeth Hunt was thus seized, in fee thereof, by conveyance to her, in the State of Nebraska, on or about August 9, 1865, and March 9, 1866, while she was the wife of said Milan Hunt; that there were living children of said Milan and Elizabeth Hunt, born of their marriage; that said Elizabeth Hunt died after executing said lease, and before the levy of the executions hereinafter named, and before the commencement of this action, leaving said Milan Hunt surviving her; that on the twentieth day of March, 1873, a judgment was rendered in the district court for Douglas County in favor of Geo. W. Forbes, and against Milan Hunt, for seven thousand six hundred and fifty-five dollars; that an execution was issued upon said judgment, which was duly levied by the sheriff of said County of Douglas, on the eighteenth day of May, 1875, on the interest of Milan Hunt as tenant, by the courtesy in the lands and tenements described in the petition; that on the twenty-sixth day of June, 1875, the said interest so levied upon was duly sold by said sheriff under execution to the plaintiff's intestate, Peter Forbes, which sale was, at the June term of said court, 1875, duly confirmed by said court, and a deed ordered to be made to the said Peter Forbes for said interest so sold by said sheriff, which was done, accordingly, before the commencement of this suit, and that the said Peter Forbes became thereby vested with whatever interest the said Milan Hunt had in said property as tenant by the courtesy, to which finding the defendant excepts; and the court finds, as a conclusion of law, that said Milan Hunt did not become seized of or entitled to an estate by courtesy or otherwise, or any interest in the said real estate for or during the unexpired portion of the said term for which the same was leased; and that said levy,...