Buchanan v. Dorsey

• Decision Date: 15 June 1881
• Citation: 9 N.W. 546,11 Neb. 373
• Parties: JOB BUCHANAN, PLAINTIFF IN ERROR, v. CHARLES G. DORSEY AND OTHERS, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

9 N.W. 546

11 Neb. 373

JOB BUCHANAN, PLAINTIFF IN ERROR, v. CHARLES G. DORSEY AND OTHERS, DEFENDANTS IN ERROR

Supreme Court of Nebraska

June 15, 1881

THE defendants in error brought their action in the district court of Gage county to recover possession of lot three, in block sixty-five, in the city of Beatrice, and to recover rents and profits thereof.The plaintiff in error in his answer claimed title to the premises under a tax deed dated Feb. 11, 1868, made and recorded more than ten years prior to the commencement of this suit, and also s et up the occupying claimants, law.The case was tried once, finding and judgment set aside, new trial granted, case continued until next term at which time it was again tried by a jury, who found the defendants in error to be the owners of and entitled to the possession of said premises.The plaintiff in error moved to set aside the verdict and for a new trial, which motion was overruled.Thereupon the plaintiff in error, by his counsel asked that a jury be impaneled to assess the value of the lasting and valuable improvements made by him as occupying claimant, as provided by law, which motion the court sustained, and a jury was duly impaneled and sworn as provided under the occupying claimants' act, and the cause in that behalf having been submitted to them, the jury found that the value of the valuable and lasting improvements on said premises was the sum of $ 935.80; that the value of said lot without the improvements was $ 575.08; that the net annual value of the rent of said lot from the time of notice to surrender possession was $ 53.94.Thereupon the defendant in error in open court elected to pay for said improvements and judgment was rendered in accordance with the verdict under the occupying claimants' act.To review these proceedings the cause was brought here upon a petition in error.

AFFIRMED.

Lamb, Billingsley & Lambertson, for plaintiff in error, argued entirely upon the admissibility of the evidence under which defendants in error claimed title, and claimed error in the exclusion of tax deed offered by plaintiff in error to sustain his claim of title.

Colby & Hazlett, for defendants in error, cited Bigelow on Estoppel, 503.

OPINION

LAKE, J.

In the view we take of this case our disposal of it must turn upon the decision of a single question, viz., the first raised in the brief of counsel for the defendants in error, which is that Buchanan, by asking for and obtaining relief at the hands of the court against the successful plaintiff below, under the "actfor the relief of occupying claimants," waived all objections to the verdict and judgment against him, of which he now complains.And our decision of this question must be in accord with what we believe was the intention of the legislature in passing that...