Carter v. Brown

• Decision Date: 10 November 1892
• Citation: 53 N.W. 580,35 Neb. 670
• Parties: CARTER v. BROWN.
• Court: Nebraska Supreme Court

35 Neb. 670

53 N.W. 580

CARTER

v.BROWN.

Supreme Court of Nebraska.

Nov. 10, 1892.

Syllabus by the Court.

1. To entitle the defendant in ejectment, on eviction at the suit of the owner of real estate, to recover, under the provisions of the occupying claimants' act, for improvements and taxes paid while in possession, it must appear that such improvements were made or such money paid while he was in good faith claiming title, legal or equitable, to the premises, derived from some public office or from the United States or the state of Nebraska.

2. L., whose only title to real estate was derived from certain tax deeds conceded to be void, executed in favor of C. a title bond conditioned that he would convey said property on payment of the consideration at the expiration of five years. Subsequently B., the owner, recovered judgment for possession thereof in an action of ejectment against C., in which the latter sought to recover, under the occupying claimants' act, for improvements and taxes paid by him. Held, in the absence of evidence that C.'s possession, actual or constructive, was by virtue of said bond, or that such money was expended for taxes and improvements while in good faith relying upon a title acquired thereby, that a judgment for the plaintiff should not be disturbed.

Error to district court, Washington county; HOPEWELL, Judge.

Ejectment by Randall A. Brown against Alexander Carter, Jr. By stipulation plaintiff took judgment for possession of the land. The questions as to rent, profits, improvements, etc., were submitted to a referee, who reported findings of fact and conclusions of law. Both parties excepted to the report of the referee. The court overruled all of defendant's exceptions and sustained the objection of plaintiff on rendering final judgment in the case, and disallowed and set aside the third finding and conclusion of law, and ordered that the sixth and seventh findings of fact by the referee be overruled, disallowed, and set aside as matters immaterial to the issues involved; and the court approved and affirmed the report of the referee as to all other findings of fact and law, and gave judgment against defendant for $100 and interest from the 20th of December, 1889, with costs. A motion for a new trial was overruled, and defendant brings error. Affirmed.W. H. Eller, for plaintiff in error.

W. C. Walton and Charles H. Brown, for defendant in error.

POST, J.

This was an action of ejectment by the defendant in error in the district court of Washington county to recover the possession of the N. E. 1/4 of the S. W. 1/4 of section 21, township 19, range 11 E., in said county. The petition is in the usual form, and does not call for any especial notice. The answer denies the title of plaintiff, and alleges title in the defendant through certain tax deeds and a title bond, which will be more particularly described hereafter. At the April, 1886, term the plaintiff's cause of action was confessed so far as his title was concerned, and judgment entered in his favor in pursuance of the following stipulation: “It is hereby stipulated by and between the parties hereto that at the April term of court this defendant [plaintiff] may take judgment in his favor for possession in this cause, * * * and that the question of rents, and profits, and improvements, and such other things and differences as are set up in defendant's answer or the defendant may have, shall be continued for settlement, or until the next term of this court.” Not being able to agree upon a settlement of the remaining issues, the case was sent to a referee, with instructions to hear the evidence, and report his findings of fact and conclusions of law upon the question of the plaintiff's claim of damage for rents and profits, and the defendant's claim for taxes and improvements. Subsequently the referee submitted the following report: “(1) That defendant took a conveyance of the land from Victor G. Lantry by a bond for a deed, September 10, 1882; (2) that defendant took possession of the land, and enjoyed the rents and profits of the same for the years 1883, 1884, 1885, 1886, and 1887; (3) that the rental value of the forty acres of land in controversy during the five years above mentioned was fifty cents per acre for each year; (4) that defendant, subsequent to February 23, 1883, placed upon the land lasting and valuable improvements of the present value of forty dollars; (5) that payments of taxes for the land in controversy have been made, and instruments and documents concerning the land have been made and delivered, such as are shown in the schedule hereto attached, and made a part of this report, marked ‘Exhibit A,’ said schedule showing tax deeds, certificates of sale for taxes, quitclaim deeds, power of attorney, one bond for a deed, and payment of taxes; (6) that the power of attorney shown in said schedule, as to date, June 10, 1881, is defective in so far as the acknowledgment before the notary fails to show any one personally appearing before him except Alice Marsilla Eaton; (7) that all of the tax deeds and some of the certificates of sale and tax receipts shown in said schedule are for other lands as well as the lands in controversy. I make the following conclusions of law: (1) That plaintiff is entitled to the sum of $100 as rents and profits; (2) that defendant is not entitled to pay for the improvements put upon the land; (3) that defendant is entitled to a lien for the taxes paid, with interest, for the years 1882, 1883, 1884, 1885, and 1886, as far as pleaded in his answer, and that he is entitled to a lien for a part of...