Bartels v. Seefus

• Decision Date: 21 May 1937
• Docket Number: 30037.
• Citation: 273 N.W. 485,132 Neb. 841
• Parties: BARTELS ET AL. v. SEEFUS ET AL.
• Court: Nebraska Supreme Court

273 N.W. 485

132 Neb. 841

BARTELS ET AL. v. SEEFUS ET AL.

No. 30037.

Supreme Court of Nebraska.

May 21, 1937

Syllabus by the Court.

1. Where a husband and wife reside upon a homestead and the wife dies, the homestead character of the land continues and the surviving husband, although he may have no children or dependents residing with him, may still claim the benefit of the homestead laws.

2. During the life of the owner of the fee of a homestead the exempt character of the property depends upon its occupancy as a homestead, but, upon the death of the fee-holding spouse, a new title is created which vests immediately in the survivor for life, individually and unconditionally.

3. Under the provisions of sections 20-2170, 20-2190 and 20-2193, Comp.St.1929, where there is an estate for life vested in a third person in the whole of the premises of which partition is sought, a remainderman cannot maintain an action in partition over the objection of the holder of the life estate.

4. A provision in a mortgage secured by the homestead of the mortgagor, releasing and waiving all homestead rights in the property, is a release and waiver available only to the mortgagee in the foreclosure of his mortgage.

5. Ordinarily a life tenant, who pays off a mortgage on the fee in order to preserve the estate, is entitled to reimbursement from the remaindermen for the amount paid for them, less such sum as will equal the present value of the annual installments of interest he would have paid during his life if the encumbrance had remained so long in existence, with lawful interest on the residue from the date of payment.

6. Under such circumstances, a life tenant has a lien against the interest of the remaindermen for the amount thus found to be due which he may foreclose in a court of equity, provided the payment of the mortgage was not made necessary by any default of his own.

Appeal from District Court, Douglas County; Hastings, Judge.

Suit by William Bartels and Albert Bartels and others against Minnie Seefus and others impleaded with Otto Timmermann, impleaded with Amelia Thompson. From a judgment in favor of defendant Otto Timmermann, the named plaintiff and defendant Amelia Thompson appeal.

Affirmed.

Jos E. Strawn, of Papillion, and Hugh A. Myers, of Omaha, for appellants Bartels et al.

Charles W. Haller, of Omaha, for appellee Otto Timmermann.

Heard before ROSE, GOOD, EBERLY, DAY, and CARTER, JJ., and HASTINGS and RINE, District Judges.

CARTER, Justice.

This is a suit brought by appellants for the partition of an 80-acre tract of land in Douglas county and for an accounting of the rents and profits of the property. Otto Timmermann, one of the appellees, answered and claimed that he had a life estate in the property for the reason that the property had been the homestead of his wife prior to her death, that the property was not subject to partition under the law, and asked the court that he be subrogated to the rights of a mortgagee of the property on a mortgage which he had paid off and on which the appellants and other owners of the remainder interest had failed to contribute. The trial court denied a partition of the premises, subrogated the appellee, Otto Timmermann, to the rights of the holder of the mortgage and entered a foreclosure decree for the amount due him. From this order, appellants brought the case to this court for review.

The record discloses that on March 1, 1915, Otto Timmermann and Mary Timmermann, his wife, purchased the property in question, each owning one-half and taking the title in both their names. In order to raise the necessary funds to pay for it, they borrowed $4,000 from George Schram and gave him a mortgage on the property. They lived upon the land until July 28, 1916, at which time Mary Timmermann died without issue. She left as her heirs at law two brothers and five sisters who now claim an interest in the property and ask that it be partitioned.

The evidence clearly shows that the property in question was the homestead of Otto and Mary Timmermann. They purchased the land and moved upon it with the expressed intention of making it their home. Neither of them owned any other real estate during the time they occupied the land. In Dougherty v. White, 112 Neb. 675, 200 N.W. 884, 885, 36 A.L.R. 425, we said: " The law is settled that, where a husband and wife reside upon a homestead and the wife dies, the homestead character of the land continues and the surviving husband, although he may have no children or dependents residing with him, may still retain the homestead as such." The trial court was clearly right in decreeing the homestead character of the property.

Under the statutes of this state, Otto Timmermann was entitled to take one-half of Mary Timmermann's interest in the property by virtue of having been her husband. Comp.St.1929, § 30-101. In addition thereto, he was entitled to a life estate in the other half of the property herein involved by virtue of its homestead character. Comp.St.1929, § 40-117. Otto Timmermann therefore owned the fee title to three-fourths of the property and a life estate in the remaining one-fourth. The heirs of Mary Timmermann were the owners of an undivided one-fourth interest, subject to the life estate of Otto Timmermann.

Appellants contend that Otto Timmermann removed from the state of Nebraska after the death of his wife and that this would affect his interests in the property. Appellants overlook the fact that the life interest of Otto Timmermann in the real estate of his deceased wife, due to its homestead character, was a fixed estate from the date of his wife's death. In Shearon v. Goff, 95 Neb. 417, 145 N.W. 855, we said: " During the life of the owner of the fee of a homestead the exempt character of the property depends upon its occupancy as a homestead; but, upon the death...