Baskins v. Krepcik

• Decision Date: 13 July 1950
• Docket Number: No. 32785,32785
• Citation: 153 Neb. 36,43 N.W.2d 624
• Parties: BASKINS v. KREPCIK et al.
• Court: Nebraska Supreme Court

Page 624

43 N.W.2d 624

153 Neb. 36

BASKINS v. KREPCIK et al.

No. 32785.

Supreme Court of Nebraska.

July 13, 1950.

Syllabus by the Court

1. A surviving spouse who elects to partition the homestead premises thereby forfeits all homestead rights therein.

2. At common law an estate in remainder subject to an existing particular estate in the whole of the real estate could not be the subject of involuntary or compulsory partition.

3. The adoption of the common law by this state was strictly qualified and limited and any part thereof may be abrogated by statute or modified or disregarded by this court as not applicable.

4. The rights of an owner of a life estate in the whole of the premises, of which partition is sought by the owner of an estate in remainder therein, cannot over the objection of the life tenant be in any way or to any extent changed or disturbed.

5. A remainderman in fee of an undivided interest in real estate may maintain a suit for partition against the owner of the remaining undivided interest in remainder, the whole of the premises being subject to a life estate.

6. The mere existence of a life estate in the whole of the premises does not prevent partition among the remaindermen prior to the death of the life tenant. If the life tenant consents or does not object, the whole of the real estate may be sold.

7. A legal right of partition of property is absolute and not a matter of grace.

8. Weddingfeld v. Weddingfeld, 109 Neb. 729, 192 N.W. 227, and Bartels v. Seefus, 132 Neb. 841, 273 N.W. 485, are discussed and distinguished.

Baskins & Baskins, North Platte, for appellant.

Beatty, Clarke, Murphy & Morgan, of North Platte, W. S. Padley, of Gothenburg, for appellees.

Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This is a suit to partition land in Lincoln County. Demurrers to the petition were sustained on the ground that a cause of action for involuntary or compulsory partition was not shown because of the existence of a life estate in the whole of the land. Appellant elected not to plead further, and the case was dismissed. The appeal is from the judgment of dismissal.

Emil F. Krepcik is the owner of a life estate in the land. Appellant is the owner of a part of the land subject to the life estate. Appellees Joseph F. Krepcik, Anna M. Bloomenkamp, Emil E. Krepcik, Edward R. Krepcik, Louis W. Krepcik, Louisa C. Pavelka, Grace Ringenberg, and Violet Krepcik, are the owners of the balance of the land subject to the life estate.

Grace M. Krepcik was the owner of the land, and it was occupied by her and her husband, Emil F. Krepcik, as their homestead at the time of her death. The appellees, except Violet Krepcik, are their children. Calvin L. Krepcik was their son. He died after the death of his mother and left surviving him Violet Krepcik, his widow, and Emil F. Krepcik, his father, as his only heirs. Emil F. Krepcik conveyed to appellant all his interest in the land except his life estate.

The owner of the life estate has not objected to partition. He defaulted on October 18, 1949. The effect of this is he disregards the lawsuit and, so far as he is concerned, the allegations of the petition may be accepted as true, including the statement that he has a life estate in all the land. Danbom v. Danbom, 132 Neb. 858, 273 N.W. 502. It is not claimed that there has been a waiver, release, or extinguishment of the life estate, or that the owner thereof has elected to have or permit partition of the land. If he had, the life estate or 'homestead right of the survivor' would have terminated. Section 40-117, R.S.Supp., 1949; Metzger v. Metzger, 108 Neb. 613, 188 N.W. 229.

Appellant and appellees are common owners in fee of a vested remainder in the land. Their estate is subject to the life estate of Emil F. Krepcik, an estate in possession in the whole of the land. The problem of this appeal may thus be stated: Can a remainderman in fee of an undivided interest in real property maintain a suit for partition thereof against the owners of the remaining undivided interest in remainder, the whole premises being subject to a life estate in another? Independently of statute, a suit in partition may not be maintained by one whose undivided estate is in remainder only. 40 Am.Jur., Partition, § 111, p. 95; 47 C.J., Partition, § 49, p. 289, § 175, p. 341; Freeman on Cotenancy & Partition, § 440, p. 534; 2 Tiffany Real Property, 3d Ed., § 475, p. 312. The case of appellant therefore must prevail, if at all, upon statutory authorization.

The legislation on the subject of partition is significant. The territorial laws provided that: 'When the object of the action is to effect a partition of real property among several joint owners, the petition must describe the property and the respective interests of the several owners thereof, if known.' Title 26, p. 538, R.S.1866 (§ 802, Code of Civil Procedure). Nebraska became a state March 1, 1867, and the territorial laws became the laws of the state. Title 26, p. 538, R.S.1866. The Legislature of Nebraska of 1871 amended this section as follows: 'When the object of the action is to effect the partition of real property among several joint owners, the petition must describe the property, and the respective interests and estates of the several owners thereof, if known. All tenants in common, or joint tenants of any estate in land, may be compelled to make or suffer partition of such estate or estates in the manner hereinafter prescribed.' Laws 1871, § 1, p. 112. Section 802 of the original code has become section 25-2170, R.R.S.1943, and it is the identical language of the amendment of 1871 except the words 'several interests' have been substituted for 'respective interests' in the first sentence, and the words 'several joint owners' are used in place of 'several owners' where they last appear in the first sentence.

The statute before the amendment of 1871 did not provide who was qualified to maintain an action for partition of real estate. The common law conferred this remedy upon joint tenants, tenants in common, owners of estates for life or years, and owners of estates in which some of the cotenants held for term of life or years and others held estates of inheritance. A prerequisite was an estate in possession, and none but parties having such estates were bound by the judgment, but the partition did not affect estates in remainder or contingency. Tenants of estates in remainder were not permitted to interfere with tenants in possession, but tenants in possession had power to compel partition confined to their particular estates but could do nothing towards effecting a severance of estates in remainder or reversion. It was the rule at common law and under the English statutes that estates of remainder or reversion could not be divided by proceedings for compulsory partition. Freeman on Cotenancy & Partition, § 439, p. 532; § 440, p. 534; 2 Tiffany Real Property, 3d Ed., § 476, p. 315. The common law applies in this state except as abrogated by statute or modified by decision of court. C. VII, § 1, p. 31, R.S.1866; section 49-101, R.S.1943; In re Estate of Lewis, 148 Neb. 592, 28 N.W.2d 427.

It is presumed that the Legislature of 1871 knew the limitations and conditions of partition as imposed by the common law, including the requirement of possession or right of possession, when it by the the exercise of its powers changed the law by an amendment thereof. In this situation it provided in simple clear language that all tenants in common or joint tenants of any estate in land may be compelled to make or suffer partition of such estate. It did not resort to any words of technical meaning indicating quality or kind of an estate owned by tenants in common or joint tenants, such as an estate in land held by them or all tenants in common or joint tenants who hold any estate in land. The words 'held' or 'hold' when used in reference to interest entitling an owner to partition imply a tenant of a freehold and have been construed as denoting an estate of present possession. Smith v. Gaines, 39. N.J.Eq. 545; Allnatt on Partition, p. 53. The Legislature used only the words any estate in land. It has not been decided during the more than three quarters of a century since the amendment of this statute that ownership of a freehold estate was indispensable to a resort to the remedy of partition of real estate. This is conceded by counsel for the contending parties. It has been determined that 'when there is an outstanding 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.' Weddingfeld v. Weddingfeld, 109 Neb. 729, 192 N.W. 227. See, also Bartels v. Seefus, 132 Neb. 841, 273 N.W. 485, These cases presented an attempt to force partition of the whole of the real estate involved, including the life estate, against the objection and desire of the life tenant. Plaintiff in either case did not seek partition of a vested remainder owned in common by the plaintiff and others without disturbing the life estate. The court did not decide that the owner of a vested remainder cannot in a proper case maintain partition with the consent of the life tenant or where the life tenant is a party to the case and makes no objection. The limitation in those cases is that a remainderman cannot partition the whole property when the owner of a life estate objects to his estate being disturbed. An important fact in this case is that the life tenant does not make objection to the remedy or any relief asked by appellant, and the record shows no reason for denying his right to resort to the remedy of partition or for denying the relief.

The partition statute requires that the petition allege the several interests and estates of the several owners of the property and if...