Carson v. Dundas

• Decision Date: 20 February 1894
• Parties: CARSON ET AL. v. DUNDAS.
• Court: Nebraska Supreme Court

39 Neb. 503

58 N.W. 141

CARSON ET AL.

v.DUNDAS.

Supreme Court of Nebraska.

Feb. 20, 1894.

Syllabus by the Court.

1. In an action of ejectment, an answer denying plaintiff's title, averring title in the answering defendant, and alleging that defendant's title had been divested by legal proceedings and a judicial sale, and that the purchaser had been put in possession, and defendant ousted, amounts to a disclaimer of title and a denial of possession.

2. Where, in an action of ejectment, title has been adjudicated in the plaintiff, but the defendant in possession decreed to have a lien upon the land, and the land ordered sold to satisfy it, the purchaser at a sale under such decree cannot, in a subsequent action of ejectment against him, tack the prior possession of the lienors to his own possession subsequent to the sale, for the purpose of establishing a title, by adverse possession against another who claims under the same source of title as the plaintiff in the action where the sale was had.

3. The purchaser at such a sale takes the title of the plaintiff in the action, in whom title was decreed, freed, however, from the lien to satisfy which the sale was made.

4. A sale to satisfy tax liens, when the action was brought in personam, and not against the land itself, passes only the title of the parties to the action and their privies in estate. It does not divest the title of strangers.

5. An administrator may, during the period of administration, maintain ejectment against the grantees of his decedent's heirs. His possessory interest, under chapter 23, § 202, Comp. St., is sufficient to sustain such action.

6. When both plaintiff and defendant claim title from a common source, evidence of the derivation of title to that common source is immaterial.

7. The plaintiff in ejectment need not prove title as against the whole world. It is sufficient if he prove a title good as against the defendant.

Error to district court, Nemaha county; T. Appelget, Judge.

Action in ejectment by J. H. Dundas, administrator, against John L. Carson, administrator, and others. From the judgment rendered, defendants Harmon and Patrick bring error. Affirmed.Geo. W. Covell and Robt. W. Patrick, for plaintiffs in error.

E. W. Thomas and Wm. H. Kelligar, for defendant in error.

IRVINE, C.

Dundas brought this action in ejectment to recover the N. W. 1/4 and the N. E. 1/4 of section 4, township 4, range 14, in Nemaha county. The original defendants were John L. Carson, administrator of the estate of Mathew A. Handley, deceased, McFarland, Campbell, and Albert Gillen. In his petition Dundas alleged that Peter B. Borst died intestate, in the state of Virginia, April 24, 1882, and that he (Dundas) had been appointed administrator of Borst's estate by the county court of Nemaha county, and had qualified as such, and he claimed the land described as such administrator. Afterwards the heirs of Handley, upon their own motion, were made parties defendant. The cause was removed to the United States circuit court, and subsequently remanded to the district court for Nemaha county. After it was remanded, the district court sustained a demurrer to the petition, which went to the jurisdiction of the court and the capacity of the plaintiff to maintain the action. A judgment of dismissal was entered, and the case brought to this court, where the judgment of the district court was reversed, this court holding (Dundas v. Carson, 27 Neb. 634, 43 N. W. 399) that an administrator may maintain ejectment for the recovery of real property for the necessary purposes of administration. That rule thus became the law of the case. After the case was remanded, the administrator and heirs of Handley filed an answer, denying plaintiff's title, averring title in themselves, by adverse possession, and further averring that, since the commencement of the action, all of the premises in controversy had been sold under a decree of the United States circuit court to Henry Harmon, the sale confirmed, a deed made, and the answering defendants evicted by the marshal, under an order of the court.

At this point the case may be briefly disposed of so far as it concerns Handley's administrator and heirs, who are among the plaintiffs in error. Their answer amounted to a disclaimer of title. It was, in substance, a denial of plaintiff's title, and an averment of title in themselves by adverse possession, and then an averment that that title had been divested by judicial sale and vested in Harmon thereby. In other words, they pleaded that they no longer had title, and that they were no longer in possession, and this removed all issues in the case, except those based upon plaintiff's count for rents and profits. Upon these issues there was no finding or judgment against Handley's heirs or administrator. They have nothing whatever to complain of here.

Immediately after the cause was remanded, Henry Harmon and John N. H. Patrick applied to be made parties defendant, and, their application being sustained, filed separate answers. Harmon, after specific denials, amounting in effect to a general denial of the allegations of the petition, averred title by adverse possession in himself of the northwest quarter. Then he averred conveyances of all the land in controversy from the widow and heirs of Peter Borst to John W. Borst, one of those heirs. The widow was also Borst's administratrix in Virginia, the place of his domicile. Harmon's answer then alleged that, in 1885, John W. Borst brought an action in ejectment in the circuit court of the United States against Handley's administrator and heirs to recover said land; that all the defendants answered; and that it was in that action determined that John W. Borst was entitled to possession, and that the defendants had a lien upon the land for $2,700 for taxes paid, and because of the ownership of a judgment which was a lien upon the land, and that, if said lien should not be paid within 20 days, the land was ordered sold to satisfy it; that John W. Borst did not pay the lien; that the land was sold under order of the court to Harmon, the sale confirmed, and a deed made, and delivered to Harmon, who was put in possession on January 18, 1888. The answer of Patrick was similar to that of Harmon, except that it averred a conveyance of the northeast quarter by Harmon to Patrick, and asserted title in Patrick to that quarter. A jury was waived, and the cause tried to the court, which found title to be in the estate of Peter B. Borst, subject to the amount of the judgment of the United States circuit court. It subrogated Harmon and Patrick to the lien of Handley's estate, and ordered possession to be given to Borst's administrator, upon the condition precedent, however, that he should first pay to Harmon, on account of the northwest quarter, one-half of the lien decreed by the federal court, together with interest, and less “the rents and profits of said land for four years, amounting to $894;” and to Patrick one-half of said lien, with interest, less the rents and profits of the northeast quarter “for four years, amounting to $620.” Both Harmon and Patrick prosecute error.

Both Harmon and Patrick claim title under the proceedings in the federal court, which was proved substantially as alleged in their answer. They have...