Bailey v. Karnopp

• Decision Date: 22 July 1960
• Docket Number: No. 34751,34751
• Citation: 104 N.W.2d 417,170 Neb. 836
• Parties: E. Earl BAILEY, Special Administrator of the Estate of Nola Bailey, deceased, Appellee, v. Merle C. KARNOPP, Sheriff of Lancaster County, Nebraska, Appellee, Robert Metcalf, Special Administrator of the Estate of Thomas M. Bentley, deceased, Intervener-Appellant. Consolidated In District Court with Zilah M. POWELL and E. Earl Bailey, Appellees, v. Goldia A. BENTLEY, a widow, et al., Appellants.
• Court: Nebraska Supreme Court

Page 417

104 N.W.2d 417

170 Neb. 836

E. Earl BAILEY, Special Administrator of the Estate of Nola Bailey, deceased, Appellee, v. Merle C. KARNOPP, Sheriff of Lancaster County, Nebraska, Appellee, Robert Metcalf, Special Administrator of the Estate of Thomas M. Bentley, deceased, Intervener-Appellant.

Consolidated In District Court with Zilah M. POWELL and E. Earl Bailey, Appellees, v. Goldia A. BENTLEY, a widow, et al., Appellants.

No. 34751.

Supreme Court of Nebraska.

July 22, 1960.

Syllabus by the Court

1. A motion for the continuance of a cause, regularly reached for trial, is addressed to the sound discretion of the trial court. Unless abuse of the discretion is shown, ruling on the motion will not be disturbed.

2. The findings of a court in a law action in which a jury is waived have the effect of a verdict of a jury and will not be disturbed on appeal unless clearly wrong.

3. In such a case, it is not within the province of this court to resolve conflicts in or to weigh evidence. If there is a conflict in the evidence, this court in reviewing the judgment rendered will presume that controverted facts were decided by the trial court in favor of the successful party and the findings will not be disturbed unless clearly wrong.

4. In considering the sufficiency of the evidence to sustain a verdict or judgment rendered by a court in a case where a jury is waived, the evidence must be considered most favorably to the successful party, any controverted fact resolved in his favor, and he must have the benefit of every inference reasonably deducible from the evidence.

5. To establish a resulting trust the evidence must be clear, satisfactory, and convincing.

6. The burden of proof is upon one seeking to establish the existence of a constructive trust to do so by evidence which is clear, satisfactory, and convincing in character.

7. The title to land becomes complete in the adverse occupant when he and his grantors have maintained an actual, continuous, notorious, and adverse possession thereof, claiming title to the same against all persons, for 10 years.

8. The payment of taxes is an element and circumstance which may be considered together with all of the other circumstances of the case with respect to the subject of adverse possession.

9. Actions in equity, on appeal to this court, are triable de novo, subject, however, to the rule that when evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have adopted one version of the facts rather than the opposite.

Barney, Carter & Buchholz, Lincoln, for appellants.

Max Kier, Lincoln, for appellees.

Heard before MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

There are two cases involved in this appeal. The first is a replevin action brought by E. Earl Bailey, special administrator of the estate of Nola Bailey, deceased, against Merle C. Karnopp, sheriff of Lancaster County, involving certain personal property taken into possession by said sheriff. Robert Metcalf, special administrator of the estate of Thomas M. Bentley, deceased, intervened in the replevin action. The sheriff filed a disclaimer of any right or interest in the property involved in the replevin action at the time of trial of such action. The second case is an action in equity brought by Zilah M. Powell and E. Earl Bailey as plaintiffs, against Goldia Bentley, a widow, Lulu Blue and Terry E. Blue, wife and husband, Lucille Yeany and Fred W. Yeany, wife and husband, Louise Busefink and Herbert Busefink, wife and husband, and Lucy Madden and John Madden, wife and husband, to quiet title to certain real and personal property known as the Lone Oak cafe, alleged to have been owned by Nola Bailey at the time of her death.

By stipulation of the parties, the two actions were consolidated for trial and appeal. A jury was waived in the replevin action and the trial had to the court.

In the replevin action the court found that the property described in the plaintiff's petition was the property of Nola Bailey, deceased, at the time of her death; that the right of possession of said personal property when this action was commenced was in the plaintiff and assessed the plaintiff's damages in the amount of one cent; and rendered judgment in accordance with the findings.

In the action to quiet title, the court found generally in favor of the plaintiffs and against the defendants; that the allegations of the plaintiffs' petition were true; that the plaintiffs were owners in fee simple of Lot 27, Irregular Tracts in Section 26, Township 10 North, Range 5 East of the 6th P.M., in Lancaster County; that the plaintiffs were the sole and only heirs of Nola Bailey, deceased; that Nola Bailey was the owner in fee simple of the premises above described at the time of her death; and that Nola Bailey died intestate and the title to the real estate vested in the plaintiffs in equal shares. The court further found that Goldia Bentley was a widow, and the defendants Lulu Blue, Lucille Yeany, Louise Busefink, and Lucy Madden were her daughters; that Goldia Bentley was the widow of Theodore M. Bentley, deceased, and the above-named defendants were his daughters; and that said defendants had asserted a claim and interest in the real estate above described and that said claims were groundless and without color or merit. The judgment makes reference to the other defendants who are the husbands of the daughters and who have no interest in the title to this real estate. The court further found that the plaintiffs and their predecessor in title had been in open, notorious, exclusive, continuous, and adverse possession of said real estate for more than 10 years immediately prior to the commencement of this action and during all of said time asserted title to said premises against all persons whatsoever, including Theodore M. Bentley, deceased; and that Theodore M. Bentley, deceased, had disclaimed all right, title, and interest in said premises by virtue of an affidavit duly filed in the office of the register of deeds in Lancaster County. The court further found that the depositions of Henry A. Van Aelst and Leona M. Van Aelst were taken by the defendants during the trial of this action and subsequently offered in evidence and found the same to be inadmissible, but that the court had reviewed the testimony tendered therein and found that even if said depositions were to be received in evidence, the court's finding generally in favor of the plaintiffs and against the defendants would still prevail. The court rendered judgment in accordance with the findings.

The defendants moved the court to vacate its decision and grant the defendants a new trial. The court overruled the defendants' motion for new trial and the defendants perfected appeal to this court.

The petition in replevin alleged that Nola Bailey, deceased, at the time of her death was the owner and in possession of certain personal effects described in the petition, which were taken into possession by the sheriff. The plaintiff prayed for return of the goods and chattels or for the value of the same.

The petition in intervention in the replevin action alleged that Theodore M. Bentley, deceased, was a resident of Lancaster County at the time of his death; and that the petitioner, as special administrator of the estate of Theodore M. Bentley, was entitled to and required to take into possession all of the personal property belonging to and owned by Theodore M. Bentley at the time of his death. The petition in intervention then described the property the same as appears in the plaintiff's petition in replevin. The petition further alleged that E. Earl Bailey and the sheriff wrongfully detained and kept said personal property from the petition in intervention. The prayer was for judgment against the plaintiff, E. Earl Bailey, and Merle C. Karnopp, sheriff, for the return and delivery of said property as described in the petition in intervention, and for costs.

At this point it is noted that throughout the record Theodore Milton Bentley is referred to as Thomas Bentley, T. M. Bentley, or Tom Bentley. We will refer to Theodore Milton Bentley as Tom Bentley or, as occasion requires, by his other names, and to the other parties as they are designated in the district court or on occasions by their names as the same may be required.

In the suit to quiet title, the petition of the plaintiffs Zilah M. Powell and E. Earl Bailey against the defendants above set forth, alleged that the plaintiffs were the owners in fee of Lot 27, Irregular Tracts in Section 26, Township 10 North, Range 5 East of the 6th P.M., in Lancaster County; that the plaintiffs were the sole and only heirs at law of Nola Bailey, deceased, being the daughter and son of the said deceased; that Nola Bailey was the owner in fee of said premises, and died on August 27, 1958, intestate; and that the title to said real estate thereupon vested in the plaintiffs, an undivided half interest therein to each of the plaintiffs. The petition then identified the defendants and their relationship to Tom Bentley, deceased, and stated that said defendants asserted and claimed an interest in the real estate herein described, which claims were false and without color or merit. It was further alleged that Nola Bailey was seized in fee of said premises by virtue of a deed of record; that Tom Bentley, deceased, in his lifetime, by affidavit duly filed of record, stated that he had no interest in said premises; that none of the defendants had any right, title, or interest in said real estate; and that by virtue of the facts above set forth there was a cloud cast upon the title of the plaintiffs to the real estate and the plaintiffs' use thereof. The prayer of the petition was that title be quieted and confirmed in ...