Fletcher v. Brown

• Decision Date: 10 November 1892
• Citation: 53 N.W. 577,35 Neb. 660
• Parties: FLETCHER v. BROWN.
• Court: Nebraska Supreme Court

35 Neb. 660

53 N.W. 577

FLETCHER

v.BROWN.

Supreme Court of Nebraska.

Nov. 10, 1892.

Syllabus by the Court.

1. An action of ejectment under our practice may be joined with one to recover rents and profits.

2. Damages for rents and profits may be recovered in an action of ejectment for the statutory period prior to the service of summons therein. The special provision of the occupying claimants' act (chapter 63, Comp. St.) applies only to rents and profits subsequent to the service of summons in the ejectment suit.

3. Whether such special provision is exclusive as to damages for rents and profits subsequent to the service of summons in ejectment, or concurrent only, query.

4. Where an occupant of real estate, in an action of ejectment, is allowed for valuable and lasting improvements made while in possession under a claim of title, the measure of his recovery is the amount such improvements add to the value of the premises. Evidence of the cost of improvements, irrespective of their effect upon the value of the land, is inadmissible.

5. Evidence examined, and held not sufficient to entitle the plaintiff in error, defendant in an action of ejectment, to recover for taxes paid by third parties.

6. One F. went into possession of property under a title bond executed by L., whereby the latter agreed to convey by good and sufficient deed, upon the payment of the last installment of the purchase money, 10 years after date. Subsequently, and before payment of the purchase money, B. brought an action of ejectment against F. to recover possession of the premises. Held, that F. could not recover against B. for taxes paid by L., in the absence of evidence of a special assignment by the latter.

7. Evidence examined, and held to sustain the finding of the trial court as to the value of improvements made by plaintiff in error, an occupying claimant.

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

Ejectment by Randall A. Brown against Leigh R. Fletcher. Judgment for plaintiff. 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 in the district court of Washington county by the defendant in error, Randall R. Brown, to recover possession of the W. 1/2 of the S. E. 1/4 of section 21, township 19, range 11 E., in said county. The petition is in the usual form in actions of ejectment, and praying judgment for damages in the sum of $100. The answer is a denial of title in the plaintiff, and an allegation of title in the defendant by virtue of two tax deeds by the treasurer of Washingtoncounty,--one in favor of R. F. Beal and E. A. Allen November 30, 1864, and the other to Victor G. Lantry August 9, 1879. It is also alleged that the defendant and his grantors have paid taxes on the property in controversy since the year 1861, and that he and his immediate grantor, Lantry, have since the year 1876, while in possession thereof, made valuable and lasting improvements thereon, consisting of a dwelling house, stable, outbuildings, orchard, etc., to the value of $2,400. The answer concludes with the prayer for an accounting in case the title to the possession is found by the court to be in the plaintiff, and that the taxes paid by the defendant and his grantor may be adjudged to be a lien thereon, and for general relief. The reply is a general denial. The case being called for trial in the district court, the cause of action was confessed by the defendant below so far as the title to the property was concerned, and the following stipulation signed by the respective parties: “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.” Subsequently the case was sent to a referee, with instructions “to take the evidence, and report upon the facts and law as to the matters in issue undisposed of by the judgment heretofore rendered in this action, being the question, on the part of the plaintiff, for the recovery of damages for the rents and profits of the land described in his petition, and the question of the recovery by the defendant of damages for taxes paid and improvements made on the same.” At a subsequent term the referee submitted his report as follows: “(1) That defendant took a conveyance of the land from Victor G. Lantry by a bond for a deed, September 30, 1882. (2) That defendant took possession of the land soon after, and enjoyed the rents and profits of the same for the years 1883, 1884, 1885, 1886, and 1887. (3) That the rental of the land was as follows: Forty-five acres worth $2 per acre for each of the years 1883, 1884, 1885, and worth $2.50 per acre for each of the years 1886 and 1887; twenty-five acres worth 25 cents per acre for each of the years 1883, 1884, 1885, 1886, and 1887. The rest of the land had no rental value. (4) That defendant placed on the land prior to February 23, 1883, and subsequent to September 30, 1882, lasting and valuable improvements of the value of $825. (5) That there was placed on the land by Victor G. Lantry, through whom defendant claims, and prior to defendant's purchase of the land, lasting and valuable improvements of the present value of $250. (6) That defendant placed on the land subsequent to February 23, 1883, lasting and valuable improvements of the present value of $600. (7) That payments of taxes for the land in controversy have been made, and instruments and documents have been made and delivered, as 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, payment of taxes, one satisfaction of bond for a deed, one redemption certificate, and one bond for a deed. (8) That, owing to the failure to plead in the answer, or owing to the fact of too much land being covered by a tax deed, or want of proof of power of attorney, or want of proof of proper assignment of interest, defendant's interest in the land in the matter of taxes is not shown clearly, except for the years 1870, 1873, 1883, 1884, 1885, and 1886. I make the following conclusions of law: (1) That plaintiff is entitled, for rents and profits, for the year 1883, to $96.25, with interest from January 1, 1884; for the year 1884, to $96.25, with interest from January 1, 1885; for the year 1885, to $96.25, with interest from January 1, 1886; for the year 1886, to $118.75, with interest from January 1, 1887; for the year 1887, to $118.75, with interest from January 1, 1888. (2) That defendant is entitled to the sum of $1,075 in payment for lasting and valuable improvements put upon the land by himself and his grantor prior to February 23, 1883. (3) The defendant is entitled to a lien for the taxes paid for the land for the years 1870, 1873, 1883, 1884, 1885, and 1886, as far as pleaded, with interest.”

Exceptions were taken to the above findings and conclusions of law by both parties, which sufficiently appear from the decree of the court, as follows: “This action coming on for hearing on the report of the referee, and objections thereto filed by the plaintiff and defendant, and arguments of counsel, and the court being advised in the premises, it is ordered that the first, second, and third exceptions of the plaintiff and also the defendant to the referee's finding of fact be, and the same are hereby, overruled, and the court approves the first, second, third, fourth, and fifth findings of fact by the referee; and it is further ordered that the said plaintiff's fourth exception to the referee's first conclusion of law be, and the same is hereby, reformed to the extent that the rents and profits of the land in controversy amount to the sum of five hundred and ninety-five dollars and eighteen cents, to the 10th day of April, 1888, and the said finding, as reformed, is hereby approved and confirmed. It is further ordered that the plaintiff's sixth objection to the referee's third conclusion is hereby disallowed and set aside; and it is further ordered that the fifth and seventh exceptions of the plaintiff to the referee's report be, and the same are hereby, overruled; and it is further ordered that the sixth, seventh, and eighth findings of fact by the referee be, and the same are hereby, disallowed and set aside as matters immaterial to the issues involved; and it is further ordered and adjudged that the referee's second conclusion of law be, and the same is hereby, approved and confirmed. It is therefore considered by the court that the plaintiff have and recover of and from the said defendant the possession of the premises in the petition described, to wit, the west half of the...