Disher v. Disher

• Decision Date: 21 May 1895
• Citation: 45 Neb. 100,63 N.W. 368
• Parties: DISHER v. DISHER ET AL.
• Court: Nebraska Supreme Court

45 Neb. 100

63 N.W. 368

DISHER

v.DISHER ET AL.

Supreme Court of Nebraska.

May 21, 1895.

Syllabus by the Court.

1. Although the rule of the common law in relation to waste has been greatly relaxed in favor of the tenant, the preventive jurisdiction of courts of equity by means of injunction is still freely exercised in favor of the reversioner against a tenant in possession whenever the threatened acts amount to a manifest injury to the estate and a wanton abuse of the tenant's rights.

2. It is not waste for a life tenant to remove timber so as to fit the land for pasture or cultivation, provided he does not in so doing damage or diminish the value of the inheritance, and his acts are conformable to the rules of good husbandry. Wilkinson v. Wilkinson, 18 N. W. 527, 59 Wis. 557.

3. Evidence examined, and held to sustain the allegation of waste by the reversioners against the defendant, a tenant for life.

4. When a court of equity has acquired jurisdiction of a cause for any purpose, it may retain it for all purposes, and proceed to a determination of all of the matters put in issue by the pleadings. Morrissey v. Broomal, 56 N. W. 383, 37 Neb. 766.

5. Under our system, the reversioner in an action to stay threatened waste by a tenant for life may recover for waste previously committed, provided there be some connection between the injury done and the acts threatened.

6. As between a tenant for life and the reversioner, the former is required to pay taxes assessed against the estate.

7. Finding against the defendant on the cause of action alleged in her counterclaim held sustained by the evidence.

Error to district court, Gage county; Broady, Judge.

Action by Peter Disher and others against Sarah Disher. Judgment for plaintiffs, and defendant brings error. Affirmed.

J. C. Johnston, for plaintiff in error.

George A. Murphy, for defendants in error.

POST, J.

This is a petition in error, and presents for review a decree of the district court for Gage county in a proceeding in which the defendants in error were plaintiffs and the plaintiff in error was defendant, to restrain the commission of threatened waste by the defendant therein as tenant for life, and to recover for damage to the plaintiffs' estate on account of waste previously committed. From the petition which was filed March 6, 1891, it appears that Stephen T. Disher died intestate on the 22d day of March, 1884, leaving no issue, and that the plaintiffs, his brothers and sisters, and children of deceased brothers and sisters, are his heirs at law; that deceased was at the time of his death the owner of 560 acres of land in Gage county, which, under the laws of this state, descended to the plaintiffs. subject to the life estate therein of the defendant, Sarah Disher, widow of said deceased; that the defendant has remained in possession of said property since the death of the said Stephen T. Disher, receiving the rents and profits therefrom; that said property is rendered valuable by reason of growing timber upon a portion thereof (which is by witnesses described as the home place); that on or about January 1, 1891, the defendant, without authority or license from plaintiffs, cut down and converted into cordwood, for the purpose of sale, a large quantity of the most valuable timber growing upon said premises, to wit, 250 cords, of 4-foot wood; that she has contracted to sell 300 cords of 4-foot wood and 100 cords of 2-foot wood, to be cut from said premises, and is now cutting and threatening to cut and carry away all of the valuable timber upon said premises, and which is specially valuable to said land as a shelter to stock, as well as the keeping in repair of the fences and other improvements thereon. It is further alleged that the defendant, on or about January 1, 1891, wrongfully removed from said premises a dwelling house situated thereon, of the value of $260, to property of her own, and is threatening to remove other buildings from said premises. The defendant, in her answer, after a general denial of the allegations of the petition, admits the cutting of certain timber growing upon said premises, but which she charges was by way of improvement thereof, and for the betterment of plaintiffs' estate, and which does not, she alleges, constitute waste. She admits the wood cut by her amounted to 240 cords, of the value of $2 per cord, and which it was her purpose to sell in order to reimburse herself on account of money paid out for taxes, and labor in keeping said place in repair, in excess of the rents received therefrom. She admits the removal of the dwelling house mentioned in the petition, but denies that it was of any value, or that her act in that regard constituted waste for which she is accountable in this proceeding. For a counterclaim she alleges that plaintiffs are indebted to her in the sum of $1,400, and interest for money advanced to the administrator of the estate of her said husband, and...