Carson v. Broady

• Decision Date: 17 November 1898
• Citation: 77 N.W. 80,56 Neb. 648
• Parties: CARSON ET AL. v. BROADY ET AL.
• Court: Nebraska Supreme Court

56 Neb. 648

77 N.W. 80

CARSON ET AL.

v.BROADY ET AL.

Supreme Court of Nebraska.

Nov. 17, 1898.

Syllabus by the Court.

1. It is a general rule of law that a landlord's ownership of demised premises cannot be denied by his tenant while the latter is in possession under the lease; and this principle is applicable to every case in which an entry upon land has been effected by the permission of the owner and in recognition of his title.

2. A tenant remaining in possession of the demised property after the expiration of his term, without any open or express repudiation of the relation created by the lease, is not, in contemplation of law, holding adversely to the owner, whatever may be his secret intention.

3. In an action for the partition of real property among several co-owners, the district court cannot properly adjudicate upon conflicting legal titles.

4. But if, in such case, the issue is tried without objection, and the disputed title conclusively established in favor of one of the parties, the other will not be heard to question the correctness and binding force of the judgment.

5. The purchase, by a tenant in common of an outstanding title to, or incumbrance on, the joint estate, inures to the common benefit; and the purchaser is, in such case, entitled to contribution from his co-tenant.

6. But this rule is not applicable to the purchase of a title or incumbrance by one of the parties before becoming a tenant in common with the other. In such case, the acquisition being neither actually nor constructively for the benefit of any future co-owner, the right of contribution does not arise.

7. An action to enforce a tax lien becomes barred at the expiration of five years from the time the cause of action accrued; and, where a void tax deed has been issued to the lien claimant, the issuance of the deed, and the failure of the title which it assumes to convey, are concurrent events.

8. When the right to enforce a tax lien by action is barred, the lien itself is extinguished, and ceases to be a charge upon the land.

9. Where one tenant in common has had exclusive possession of the joint estate, and has made lasting and valuable improvements thereon, without consulting his co-tenant, there should, in partition, be allotted to him, the portion of the property on which such improvements are situated, if that can be done without prejudice to the rights of his co-owner.

10. If, in such case, the property is not susceptible of physical division, it should be sold, and the proceeds divided, after deducting therefrom, for the benefit of the party in possesion, such sum as the court shall determine the salable value has been enhanced by the improvements.

11. A tenant in common who leases the interest of his co-tenant, and remains in possession after the expiration of the term, discharging the obligation imposed upon him by the contract, will be presumed to be holding under the lease, and subject to its provisions, in the absence of evidence indicating a surrender of the demised interest or termination of the tenancy by mutual consent.

Appeal from district court, Richardson county; Bush, Judge.

Action by Marion A. Carson and others against J. H. Broady and John Tighe. Judgment for plaintiffs, and defendants appeal. Modified.E. W. Thomas and J. H. Broady, for appellants.

Reavis & Reavis, for appellees.

SULLIVAN, J.

This action for the partition of 160 acres of land lying in Richardson county was commenced by Marion A. Carson, Edith Carson, William Carson, and L. Ward Carson against Jefferson H. Broady and John Tighe. The defendants answered, denying plaintiffs' title, alleging title in themselves by adverse possession, and setting up a claim for moneys expended by them in purchasing outstanding tax titles, paying taxes, and improving the premises. From a decree confirming the shares of the parties, directing partition, and adjusting incidental equities, the defendants have appealed.

The facts out of which the litigation has arisen, and which are essential to an understanding of the questions here presented for decision, may be summarized as follows: The real estate in controversy was originally owned by David E. Carson, who died, intestate, in the year 1862. His heirs were his six brothers and sisters. In October, 1877, William Carson, one of these brothers, also died intestate, leaving, surviving him, his widow, Louise W. Carson, and four minor children. These children are the plaintiffs in this action. In 1875 a tax deed for the entire tract, based on a sale for the delinquent taxes of 1872, was issued by the treasurer of Richardson county to Edwin S. Towle. In 1877, Elizabeth Shrauger purchased Towle's interest in the premises, and proceeded at once to occupy and improve the same. In June, 1880, Shrauger sold and delivered possession of the west 80 to Henry Nedrow. In 1877, a treasurer's deed based on a sale of the land for the delinquent taxes of 1874 was issued to Charles Bruun, who, in June, 1881, sold and transferred his interest to the defendants. In September of the last-named year, the defendants obtained from the surviving brothers and sisters of William Carson a deed for their undivided interest in the land; and desiring to secure the one-sixth interest of the plaintiffs, who were then minors, proceedings were instituted at the instance of defendants to bring about, for their benefit, a guardian's sale of the land. These proceedings were afterwards abandoned, but, while they were pending, the defendants, in order to obtain a title on which they could maintain ejectment against Shrauger and Nedrow, secured from the plaintiffs, on October 14, 1881, a lease for their one-sixth interest. This lease was immediately recorded, and actions for possession commenced. A compromise of these cases was afterwards effected, whereby the possession of Shrauger and Nedrow was surrendered, and their interests conveyed, to Broady and Tighe, who have ever since occupied the premises.

These appellants now insist that they were in the exclusive adverse occupancy of the land for more than 10 years before the action for partition was commenced, and that the right of the plaintiffs to assert their title is barred by the statute of limitations. This contention cannot be sustained. The defendants recognized the validity of plaintiffs' title, and, by relying on it and claiming under it, they effected a compromise of the ejectment suits, and were thus let into possession of the land. It is an ancient and well-settled rule of law that a tenant cannot, while occupying the premises, deny his landlord's title. This is so even where he was in possession before the lease was made. Richardson v. Harvey, 37 Ga. 224; Thayer v. Society, 20 Pa. St. 60; Lucas v. Brooks, 18 Wall. 436;Sage v. Halversen (Minn.) 75 N. W. 229. And the principle is applicable to every case in which the possession of land has been obtained by the permission of the owner, and in recognition of his title. Dubois v. Marshall, 3 Dana, 336;Downer v. Ford, 16 Cal. 345;Love v. Edmonston, 23 N. C. 152. The relation of landlord and tenant was created by the lease. The defendants, until the answer was filed in this case, did not repudiate that relation, or indicate by any clear and unequivocal act their intention to hold adversely. Under these circumstances, their holding was not adverse, in contemplation of law, whatever may have been their secret purpose. Besides, at the time they obtained possession, they were, with the plaintiffs, tenants in common of the land. They were negotiating for the purchase of the plaintiffs' title. They recognized its validity then, and even as late as 1889 made application to buy it. They did no act at any time evincing an intention on their part to oust their cotenants; and they could not by a mere silent peaceable possession, however long continued, extinguish the plaintiffs' title. Warfield v. Lindell, 30 Mo. 272;Purcell v. Wilson, 4 Grat. 16;Day v. Davis, 64 Miss. 253, 8 South. 203;Peeler v. Guilkey, 27 Tex. 355;Holley v. Hawley, 39 Vt. 525.

In the brief filed for the appellants, it is argued that, the title of the plaintiffs being denied, the court was without authority to determine the questions in issue in an action to partition the land. Upon this point it is sufficient to say that the issues were tried without objection, and the averments of the petition established by undisputed proof. The defendants submitted their cause to the court without protest. They would have willingly accepted the decision had it been favorable to them, and they cannot be heard to complain on this ground because it is against them.

We proceed now to consider the equities of the parties incident to a partition of the land. The defendants ask to be reimbursed for moneys expended in purchasing outstanding tax titles, and in improving the property. In the case of Brown v. Homan, 1 Neb. 448, it was held that the purchase by a tenant in common of an outstanding title to, or incumbrance on, the joint estate, would inure to the common benefit,...