Blazier v. Johnson

• Decision Date: 15 June 1881
• Parties: BLAZIER v. JOHNSON.
• Court: Nebraska Supreme Court

11 Neb. 404

9 N.W. 543

BLAZIER

v.JOHNSON.

Supreme Court of Nebraska.

Filed June 15, 1881.

Error from Lancaster county.

J. E. Philpott and J. L. Caldwell, for plaintiff.

J. R. Webster and A. G. Scott, for defendant.

LAKE, J.

This was an action for the recovery of two lots in the city of Lincoln. In his answer the plaintiff in error conceded that the legal title was in the defendants in error, but pleaded in bar of their claim-- First, the statute of limitations; and, second, that he himself was well entitled to the lots by virtue of his occupancy and improvement thereof under the act of the legislature of February 15, 1869, “For the relief of persons who have improvements upon state lots in the town of Lincoln.” And in this behalf he avers that the state officers, having the disposal of these lots, in disregard of his rights, fraudulently sold them to the defendants in error, who were purchasers with notice of his equities. This sale was made and the title passed from the state by deed to Pier Benson, one of the defendants in error, April 4, 1870. In ejectment, this title from the state by deed in fee should, of course, prevail, unless overborne by the superior equity of the plaintiff in error. It is now settled law, and conceded to be so by the defendant's counsel, that a defendant in ejectment may interpose an equitable defence to defeat a recovery by the holder of the legal title. But to avail him, his equity must of course be superior to that of the holder of the fee. Has Blazier shown such equity in himself, or even made such a case by his proofs, as would support a finding by a jury that he had? Most clearly not, as we think.

In addition to the fact of Blazier's settlement upon and improvement of these lots, of which there is no controversy, his answer sets forth that he tendered to the proper state officers the amount at which they had been valued under the act above referred to. But it will be noticed that the time of making this tender is not stated. In his testimony, however, he said “it was the last of April or the first of May” that he made it, which was at least several days after the title had passed from the state by the conveyance to Benson. This tender, therefore, even if it were made, of which there is considerable doubt under the testimony, was a useless act, for the state had already received payment, and had no title to convey. In this condition of things respecting the lots, to assert his equity, if he had it, against the defendants in error, Blazier shauld have made and proved a tender to them of at least the appraised value of the lots, which the answer conceded the defendants in error had paid, together with interest on that amount from the time of payment. But he did not do this. He has made no offer to re-imburse them for any portion of their expenditure of $1,500 in paying for the lots, of which he now seeks to deprive them, by what he claims is a superior equity. In other words, he demands the judicial establishment of his ownership of the property as against those whom he admits have bought and paid for it, without the payment of a single dollar by himself. To accord him this, it...