Carter v. Warner

• Decision Date: 19 March 1902
• Citation: 2 Neb. [Unof.] 688,89 N.W. 747
• Parties: CARTER ET AL. v. WARNER.
• Court: Nebraska Supreme Court

2 Neb. [Unof.] 688

89 N.W. 747

CARTER ET AL.

v.WARNER.

Supreme Court of Nebraska.

March 19, 1902.

Commissioners' opinion. Department No. 2. Appeal from district court, Boone county; Kendall, Judge.

“Not to be officially reported.”

Action by Joseph Carter and others against Asher D. Warner. Judgment for defendant, and plaintiffs appeal. Reversed.H. C. Vail, for appellants.

OLDHAM, C.

On the 26th day of August, 1899, the appellants filed their petition in the district court of Boone county for and obtained a temporary injunction against the appellee, restraining from erecting a fence around a certain lot or piece of land in Hardy's addition to the village of St. Edwards, in Boone county, and from interfering with the appellants' possession, use, and enjoyment of said premises. This petition, in substance, alleges that plaintiffs (the appellants) are the owners of this land, and are engaged in the business of buying and selling and feeding live stock, and for this purpose have erected feed sheds, and are feeding stock therein, and that they have had exclusive possession thereof for more than nine months last past; that the defendant (the appellee), on the morning of this day, came on the premises, and commenced the erection of a fence thereon, and is attempting to unlawfully deprive the appellants of the possession thereof, and deprive the appellants of said feed yard; and is about to and threatens to wrongfully convert the same to his own use, and will do so unless restrained from so doing; that the plaintiffs are without any adequate remedy at law, etc. To this petition the appellee filed his answer, denying the allegations of the petition, and alleging that he is the owner in fee simple of the land, and that on the 26th day of August, 1899 (the day the suit was begun), he had possession and was using the same for keeping stock; that this possession was prior to and at the time the action was commenced. The appellants to this answer filed a general denial, and on these issues the case was tried to the court, who made one finding,--“that the plaintiff had an adequate remedy at law,”--and thereupon dismissed the case at the costs of plaintiffs, from which they appeal to this court.

The testimony discloses that along and abutting the right of way of the railroad that runs through this village is a triangular piece of land which for several years prior to August, 1898, was used by the appellee, Warner, as a feed lot, on which were sheds, cribs, and, in short, the usual appliances for feeding cattle; that Warner claimed to own it; that in August, 1898, he contracted to sell this feed lot to the appellants; that they were given possession thereof, and in December, 1898, Warner procured a deed to be made from Long, who held the legal title, to the appellants, and received the full purchase price. This tract was not numbered or otherwise designated, and this deed from Long described the property by metes and bounds. It further appears that the description in the deed does not contain this entire tract, but leaves a small three-cornered piece directly north of it, which fills out the triangle; that there was no dividing line between these two tracts, and that it all was used by Warner as a feed lot when sold to the appellants; the appellants, after coming into possession, built additional sheds, a part of which is on this three-cornered lot, now claimed by Warner; that they believed from what Warner said at the time, when they were talking with him about buying this feed lot, that he owned all the land that he was using as such; that they had no knowledge to the contrary until after the improvements were made, the deed delivered, and the purchase price paid. But in April, 1899, they became aware of this fact, and applied to Dr. Flory, who was looking after the affairs of one Hardy, who originally owned this addition, to purchase it to protect themselves. This application resulted in a deed to the appellants from Hardy for this land. This is a warranty deed, executed and acknowledged in the usual form, and dated August 3, 1899, and filed for record with the county clerk of Boone county on August 8, 1899. On August 12, 1899, Warner had a deed filed and recorded in the clerk's office of Boone county, which purports to convey this same tract of land to him. This instrument is also signed by Hardy, but it is not acknowledged. In fact there is no acknowledgment attempted, and it bears the date of February 6, 1896. By this deed Warner claims ownership and possession of this piece of land. It further appears that on the morning of August 26, 1899, Warner came upon the premises in question, without the consent and against the will of the appellants, and with material and help began to erect a fence thereon, and that he also turned therein 10 head of his hogs; that in a few minutes after this trespass was committed one of the appellants started...