Bender v. Fuchs
| Decision Date | 15 October 1965 |
| Docket Number | No. 35964,35964 |
| Parties | LaVern BENDER and Margaret Bender, Appellants, v. Mary S. FUCHS, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A judgment in partition determines the title of the joint tenants or tenants in common and fixes their respective shares and, when reduced to a judgment that is not appealed from, is a final judgment as in any other civil action.
2. The title determined by a partition judgment which has become final is presumptive evidence of title in all cases, and as between the parties it is conclusive evidence of title.
3. A party to a partition action who has been properly served with process and raises no issue of title is estopped by judgment from subsequently asserting ownership of the partitioned premises by adverse possession.
4. The words 'subject, however to be defeated by proof of a title paramount to, or independent of, that under which the parties held as joint tenants or tenants in common,' contained in section 25-21,107, R.R.S.1943, mean that a judgment in partition may be defeated by a title paramount to the rights of the joint tenants or tenants or tenants in common in the hands of a third person or by such a paramount title acquired by a party to the partition proceeding after the judgment became final.
5. A party to a partition judgment who has acquiesced therein and accepted his share of the partitioned estate is estopped from questioning the title of the purchaser of the partitioned property as described and determined by the court.
Byron Reed, Columbus, for appellants.
Walter, Albert, Leininger & Grant, Columbus, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.
This is a suit to quiet title to an irregular tract of land along the east side of the east half of the northwest quarter of Section 27, Township 20 North, Range 1 West of the 6th P.M., Platte County, Nebraska, containing, 4.756 acres. The tract is described in the petition by metes and bounds, and for the purposes of this opinion will be referred to as the tract of land. The defendant asserted in her answer that she had obtained title to the tract by adverse possession. The trial court found for the defendant and quieted title in her to the disputed tract. The plaintiffs have appealed.
The plaintiffs are the owners of the east half of the northwest quarter of Section 27 and the defendant is the owner of the northeast quarter of Section 27, the respective lands having a common boundary between them. On or about March 13, 1959, a petition to partition the east half of the northwest quarter of Section 27 was filed, resulting in a partition sale. Plaintiffs were the successful bidders at the sale and a referee's deed was duly issued to plaintiffs on June 20, 1959. Mary Fuchs, the defendant herein, had a 1/30 interest in the land, was made a party defendant in the partition suit, was served with summons, made a general appearance but filed no answer, was present at the partition sale and made no objection thereto, and received her share of the sale price. The land was described in the referee's deed as 'The East Half of the Northwest Quarter (E1/2 NW1/4) of Section Twenty-seven (27), Township Twenty (20) North, Range One (1) West of the 6th P.M., Platte County, Nebraska.' It is the contention of the plaintiffs that they purchased 80 acres of land according to government survey, which would include the tract giving rise to this litigation.
The defendant asserts that she is the owner of the disputed tract by adverse possession; that she has had open, notorious, and exclusive possession for more than 10 years prior to the commencement of the partition action. Plaintiffs contend that defendant is estopped to assert adverse possession by having failed to raise the issue in the partition suit to which she was a party. Failing this, the defendant then contends there can be no estoppel where the parties have equal knowledge of the facts, which the defendant contends is the situation here.
The effect of the partition judgment is of primary concern in this case. Section 25-21,106, R.R.S.1943, provides: The defendant in the instant case was served with summons, made a general appearance, and filed no pleading claiming any interest in the land other than that alleged in the petition for partition. It would appear that under the foregoing section of the statute defendant is bound by the judgment in the partition action and that she could not now raise an issue of title which existed at that time.
It is the contention of defendant that she was not obliged to assert title to the tract of land here involved in the partition action by virtue of section 25-21, 107, R.R.S.1943, which provides: 'The judgment of partition shall be presumptive evidence of title in all cases, and as between the parties themselves it is conclusive evidence thereof, subject, however, to be defeated by proof of a title paramount to, or independent of, that under which the parties held as joint tenants or tenants in common.' The question immediately arises as to the meaning of the words 'subject, however, to be defeated by proof of a title paramount to, or independent of, that under which the parties held as joint tenants of tenants in common.'
Section 25-21,106, R.R.S. 1943, provides that when all the parties in interest have been served by summons or by publication as in ordinary civil actions, the proceedings prescribed shall be binding and conclusive upon them all. Section 25-21,107, R.R.S.1943, provides that a judgment of partition shall be presumptive evidence of title in all cases, and as between the parties themselves it is conclusive evidence thereof.
A text writer states the rule as follows: Freeman on Cotenancy & Partition, s. 530, p. 642.
In Staats v. Wilson, 76 Neb. 204, 107 N.W. 230, 124 Am.St.Rep. 806, the court in dealing with a contention that a judgment in partition proceedings is not final, quoted Laws 1866, Title 26, section 839 (now section 25-21,106, R.R.S.1943), and stated: 'This language is so plain that no judicial interpretation is required.' In holding that plaintiffs were estopped by the judgment in partition, the court in the syllabus said:...
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Hausner v. Melia
...parties are estopped from raising any claim of interest or title which was or could have been raised in that action. Bender v. Fuchs, 179 Neb. 162, 137 N.W.2d 364 (1965). Mable Melia's possession from the date of the judgment in partition to the present time falls short of the required 10 H......