Billingsley v. Ricketts

• Decision Date: 01 July 1891
• Parties: L. W. BILLINGSLEY v. J. C. RICKETTS
• Court: Nebraska Supreme Court

49 N.W. 443

32 Neb. 438

L. W. BILLINGSLEY v. J. C. RICKETTS

Supreme Court of Nebraska

July 1, 1891

ERROR to the district court for Lancaster county. Tried below before FIELD, J.

AFFIRMED.

L. W Billingsley, and Pound & Burr, for plaintiff in error, cited 1 Greenl., Ev., secs. 113, 114; Vicksburg R. Co. v O'Brien, 119 U.S. 99; Durkee v. R. Co., 69 Cal. 533; Luby v. R. Co., 17 N.Y. 131; Williamson v. R. Co., 144 Mass. 148; Wilson v. Barkalow, 11 Ohio St. 470; Crete v. Childs, 11 Neb. 256; Harrison v. Baker, 15 Neb. 47; Frederick v. Kinzer, 17 Neb. 367; Brant v. Coal Co., 93 U.S. 336; Ferris v. Coover, 10 Cal. 631; Gray v. Bartlett, 20 Pick. [Mass.] 193; Odlin v. Gove, 41 N. H., 477; Hill v. Epley, 31 Pa. 334; McCune v. McMichael, 29 Ga. 312; Knouff v. Thompson, 16 Pa. 363; Crest v. Jack, 3 Watts [Pa.] 240; Gove v. White, 20 Wis. 425; Plummer v. Mold, 22 Minn. 15; Mayo v. Cartwright, 30 Ark. 407; Patterson v. Esterling, 27 Ga. 207; Bigelow v. Topliff, 25 Vt. 273; Hill v. Epley, 31 Pa. 331; Mason v. Philbrook, 69 Me. 57; Tongue's Lessee v. Nutwell, 17 Md. 212; Fisher v. Mossman, 11 Ohio St. 42; Brown v. Tucker, 47 Ga. 485; Pence v. McPherson, 30 Ind. 66; B. & O. R. Co. v. Strauss, 37 Md. 237; East v. Dolihite, 72 N. Car., 562; McGarrity v. Byington, 12 Cal. 426; Dellett v. Kemble, 23 N.J.Eq. 58.

Lamb, Ricketts & Wilson, contra, cited: McCann v. Atherton, 106 Ill. 31; Warrall v. Munn, 5 N.Y. 229; Cocks v. Barker, 49 N.Y. 107; Ordinary v. Thatcher, 41 N.J.L. 403; Beers v. Beers, 22 Mich. 42; C. W. & Z. R. Co. v. Iliff, 13 Ohio St. 235; Plank Road Co. v. Stevens, 10 Ind. 1; Wight v. Shelby, 16 B. Mon. [Ky.] 4; Duncan v. Pope, 47 Ga. 445; 2 Herman, Estoppel, 1053, 1093, 1094, 1191, 1192; Grymes v. Sanders, 93 U.S. 55; Vallette v. Bennett, 69 Ill. 632; Miller v. Craig, 3 Stock. [N. J. L.] 175; Grant v. Davenport, 18 Iowa 178; Snodgrass v. Ricketts, 13 Cal. 359; Marines v. Goblet, 9 S.E. [S. Car.] 803; 2 Pomeroy's Eq. Jur., sec. 810.

OPINION

MAXWELL, J.

This is an action of ejectment brought by the plaintiff against the defendant, in the district court of Lancaster county, to recover the possession of the northeast quarter of the southwest quarter, section 27, township 10 north, range 6 east, and damages for digging up and carrying 2,000 cubic yards of building sand of the alleged value of $ 500.

The defendant in his amended answer, First, interposes certain denials, and for a second defense says, "Wealthy P. Gregory, through whom the plaintiff claims title, is the mother of one John S. Gregory, the plaintiff's counsel of record in this case; that one E. Mary Gregory is the wife of said John S. Gregory; that the plaintiff in this suit is not the real party in interest, but is simply an alter ego for said John S. and E. Mary Gregory, who is the real party in interest; that on or about the 17th day of February, 1880, the said John S. Gregory desired to sell to this defendant the said premises, then representing the legal title to be in one Harry E. Wells. He then gave to the plaintiff what he claimed to be the chain of title to said premises, viz., that the title passed from the United States to one Emerson H. Eaton, and from said Eaton to E. Mary Gregory, his wife, by sheriff's deed, from E. Mary Gregory, to John S. Gregory, her husband, to Wealthy P. Gregory, and Wealthy P. Gregory and husband back to E. Mary Gregory and John S., her husband, to Mary E. Sweetland, from Mary E. Sweetland to Harry E. Wells; that the said defendant was induced to rely upon said statement and thereupon purchased said land, taking from said Wells a warranty deed, except taxes and tax deeds, and then believed that he was getting a good and perfect title, except as to outstanding tax title and taxes, and had no actual notice to the contrary; that during the spring of 1880, this defendant took actual possession of said premises, and caused to be erected thereon a small dwelling, which he caused to be occupied; that in the spring of 1881 he caused said premises to be inclosed with a fence, and otherwise to be improved, and from then hitherto continued to hold, occupy, improve and claim said premises for more than four years, without any knowledge that Wealthy P. Gregory, or any other person, claimed any interest therein.

"This defendant, also relying upon his title, did, in the month of June, 1880, buy in the outstanding tax title and tax certificate at a cost to him of about $ 200; that during all of said time Wealthy P. Gregory resided about 250 feet from the residence of this defendant, and in full view of said premises, and saw this defendant take possession of, and thereafter exercising sole and exclusive control over said premises and improving the same, as his own property, as herein alleged, and repeatedly during all of said period met and conversed with the said W. P. Gregory about property and other matters, without the slightest intimation that she had or claimed any interest in or to said premises. During all of said period, and from thence to the commencement of this suit, this defendant paid all the taxes assessed against said premises.

"This defendant says by reason of the premises, the said Wealthy P Gregory and her grantee, the plaintiff herein, and those for whom (she) holds, are estopped to claim any interest in or to said premises.

"Third--That Wealthy P. Gregory, under whom plaintiff claims title, derived her title from E. Mary and John S. Gregory, and that thereafter and in June, 1878, the said E. Mary Gregory and John S. Gregory, her husband, conveyed said premises by warranty deed to Mary E. Sweetland, who afterwards conveyed said premises to Harry E. Wells, who conveyed to this plaintiff. And this defendant is advised, and believes and alleges the fact to be, that said Wealthy P. Gregory reconveyed said premises to E. Mary Gregory prior to her conveyance to Mary E. Sweetland, which deed was and is kept from the records by John S. Gregory, the real party in interest in this suit. And if the said Wealthy P. Gregory continued to hold the naked legal title, she held it as naked trustee for John S. and E. Mary Gregory.

"Fourth--That the premises described in the plaintiff's petition were subject to state and county taxes for the year 1874; that for said year said premises were duly assessed and returned for taxation, and taxes were duly levied thereon by the county board of Lancaster county, Nebraska, for said year, which said premises were placed in the hands of the treasurer of said county for collection; that in default of payment of taxes thereon for said year by the plaintiff or any of his grantors, said premises were, on the 21st day of September, 1875, duly sold by the treasurer of Lancaster county, Nebraska, at public sale, to one F. A. Osborn, for the sum of $ 22.60, he being the highest and best bidder therefor; that said premises were not redeemed from said sale, and that on the 5th day of February, 1878, on presentation of the certificate of tax sale by Charles L Flint, the then holder thereon, and on demand for a deed, and the said premises then not having been redeemed, the then treasurer of Lancaster county, Nebraska, executed and delivered to said Charles L. Flint...