Eayrs v. Nason
| Decision Date | 03 March 1898 |
| Citation | 74 N.W. 408,54 Neb. 143 |
| Parties | EAYRS ET AL. v. NASON ET AL. |
| Court | Nebraska Supreme Court |
1. Though the record in which a judgment is pronounced discloses upon its face that the court had jurisdiction both of the subject-matter of the suit and of the parties thereto, still, a party made liable by such a judgment, who has never appeared in the action, and who was never given legal notice of the pendency of such action, may, in a proper proceeding, either as a cause of action or defense, show that the recitals of the record that he was served with the process of the court are false.
2. Suit was brought to foreclose a real-estate mortgage, the owner of the equity of redemption of the land involved made defendant thereto, and constructive service had on him by publication, he being at the time a resident of the state, and actually present therein. He did not appear in the action personally or by attorney. After the decree, the defendant died. Held, that in a suit brought by his heir against the purchaser of the land at the sale under the foreclosure decree, to quiet the heir's title and redeem from the mortgage, the heir might show that the averments of the affidavit filed to procure constructive service upon his ancestor, that he was then a nonresident of the state, and that service of summons could not be made on him in the state, were false.
3. There is no privity between an administrator and an heir so far as regards the decedent's real estate. Dundas v. Carson, 43 N. W. 399, 27 Neb. 634, and Carson v. Dundas, 58 N. W. 141, 39 Neb. 503, distinguished.
4. A judgment dismissing an administrator's action to quiet title is not a bar to a subsequent action by the heir against the defendant in the administrator's suit, to quiet title to the same real estate, which has descended to the heir from the administrator's intestate.
5. When it is not apparent from the face of a pleading that the action or defense is barred by the statute of limitations, then the bar must be raised by plea, or it will be deemed waived.
6. But, when a pleading discloses upon its face that the action or defense is barred by the statute of limitations, then such bar may be raised by objection that the pleading does not state a cause of action or defense.
7. Whether the time in which an action must be brought to quiet title to real estate, where the defendant asserts title thereto by an unrecorded sheriff's deed, which the plaintiff claims is void, is prescribed by section 16 or section 6 of the Code of Civil Procedure, not decided.
8. Under our Code, a party may maintain an action to quiet his title to real estate whether he be in or out of possession, and whether his title be a legal or an equitable one.
9. In an action to quiet title, the statute of limitations does not begin to run in favor of the defendant until some assertion of ownership or claim to the premises is made by him.
10. Plaintiff's action was to quiet title by having a sheriff's deed held by the defendant decreed void and canceled as a cloud. Neither party was in possession of the real estate. The sheriff's deed had never been recorded. The defendant asserted title under the deed. Held that, so far as the petition disclosed, plaintiff's cause of action accrued at the date the suit was brought.
Appeal from district court, Douglas county; Ferguson, Judge.
Suit by Sarah A. Eayrs and others against William N. Nason and others. Decree for defendants, and plaintiffs appeal. Reversed.C. C. McNish, Brome, Bennett & Jones, and B. L. White, for appellants.
Jas. W. Carr, for appellees.
This is an appeal by Sarah A. Eayrs from a decree of the district court of Douglas county dismissing a suit in equity brought by her in that tribunal, against William N. Nason.
1. In her petition in the district court the appellant alleged that on the 3d day of June, 1875, her father became the owner of certain described real estate, and died subsequently possessed thereof; that the title to said real estate had descended to her, as his only surviving heir at law; that during her father's life he became indebted in the sum of $50 to one Fisher, and, to secure the payment of this debt, he executed to Fisher a mortgage upon said real estate, of which mortgage debt the appellee Nason, subsequently became the owner, and brought suit in the district court of Douglas county to foreclose said mortgage, obtained a decree, caused the real estate to be sold, and purchased it at the judicial sale made, and procured from the sheriff a deed for said real estate on the 1st of July, 1881, under which deed the appellee Nason claims title to the real estate in controversy; that said decree of foreclosure and all the proceedings thereunder were void, for the reason that the service, and only service, of process had upon appellant's father in said foreclosure suit, was by publication; that, at the time said service by publication was made, appellant's father was a resident of, and actually within, the state of Nebraska; was at that time, and for sometime afterwards, insane; and that said service by publication was the only notice that was ever attempted to be given appellant's father of the pendency of the said foreclosure action; and that the sheriff's deed executed to said appellee constituted a cloud upon appellant's title to the real estate. The bill then averred that the real estate in controversy was vacant and unoccupied; that appellant was advised that the appellee had paid certain taxes, which had been duly levied and assessed against the real estate, and which taxes, together with the aforesaid mortgage debt and interest thereon, the appellant offered to pay to the appellee. The bill concluded with a prayer that an accounting might be taken of the amount due the appellee for taxes paid on said real estate, and for the amount due on said mortgage debt; that appellant might be permitted to pay the amount found due into court for the benefit of the appellee; and that the title to the real estate might be quieted and confirmed in her. The appellee, by his answer, admitted that he claimed to own the legal title to the real estate in controversy by virtue of the sheriff's deed executed in pursuance of the decree rendered in the foreclosure proceeding mentioned in the bill. He also averred that he had been in the open, notorious, exclusive, and adverse possession of the real estate described, claiming to own the same for a period of more than 10 years; and, as a further defense to the action, averred that the administrator of appellant's father, in the year 1885, brought suit against him (the appellee) to quiet the title to the real estate in controversy; that he (the appellee) appeared and defended that action; and that judgment was rendered therein dismissing the same; and interposed the judgment in that action as a bar to this. The district court found specially that appellant was the sole surviving heir of James H. Eayrs, who died on the 15th of August, 1877; that he became possessed of the legal title to the real estate in controversy on the 3d day of June, 1875; that on the 23d of June, 1875, James H. Eayrs executed to one Fisher a note for $50, and a mortgage upon the real estate to secure its payment; that on the 18th of December, 1875, the appellee, who was then the owner of the mortgage debt, brought suit to the district court of Douglas county to foreclose the mortgage, obtained a decree, caused the property to be sold, and purchased it at the judicial sale, and obtained from the sheriff, on the 1st day of July, 1881, a deed for the property; that James H. Eayrs, from the 18th of July, 1875, until the day of his death, in August, 1877, was a resident of, and actually within, the state of Nebraska; that no service of process in the foreclosure proceeding was had upon James H. Eayrs, except service by publication; that a summons was duly issued in that proceeding against James H. Eayrs, and returned “Not found,” in Douglas county, Neb.; that the notice of publication was published in a newspaper in the city of Omaha; that the premises in controversy were on the 25th of June, 1875, and ever since that time have been, vacant and unoccupied; that on the 20th of February, 1885, the administrator of James H. Eayrs brought a suit to the district court of Douglas county against the appellee, on the same cause of action on which the appellant has brought this action; that the appellee Nason appeared and defended that action, which resulted in a judgment of dismissal. From these special findings, the court concluded, as a matter of law: (1) That the appellant's action here was barred by the judgment recovered in the action brought by the administrator of appellant's father against the appellee; and (2) that the appellant's cause of action here was barred, when brought, by the statute of limitations.
2. Was the foreclosure decree rendered by the district court of Douglas county in the suit of appellee against appellant's father void? We think it was. Appellant's father, at the time of the institution of that suit, and at the time of the pronouncing of that decree, was a resident of, and actually within, the state of Nebraska. The entire tract of land upon which the mortgage was a lien was situate in Douglas county, Neb. The action to foreclose the mortgage then could have only been brought in that county. Code Civ. Proc. § 51. The appellant's father did not appear in that action, and the only notice that he had of its pendency was a constructive one; that is, service by publication, as provided by sections 77 and 78 of the Code of Civil Procedure. Appellant's father was the owner of the legal title to the land upon which the mortgage foreclosed in that suit was a lien, and was therefore a proper and a necessary party to that suit. He was a resident of, and actually present within, the state of Nebraska, and therefore no valid notice of the pendency of the suit...
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