Fraser v. Temple

• Citation: 173 Neb. 367,113 N.W.2d 319
• Decision Date: 16 February 1962
• Docket Number: No. 35109,35109
• Parties: Donald Ross FRASER, Kenneth Fraser, Dorothy Hyde Fraser, Bruce K. Lyon, Administrator of the Estate of Carrie N. Fraser, deceased, Appellants, v. Alice N. TEMPLE, Williams H. Long and Wardie E. Bullock, Appellees.
• Court: Supreme Court of Nebraska

Page 319

113 N.W.2d 319

173 Neb. 367

Donald Ross FRASER, Kenneth Fraser, Dorothy Hyde Fraser, Bruce K. Lyon, Administrator of the Estate of Carrie N. Fraser, deceased, Appellants, v. Alice N. TEMPLE, Williams H. Long and Wardie E. Bullock, Appellees.

No. 35109.

Supreme Court of Nebraska.

Feb. 16, 1962.

Syllabus by the Court.

1. An action for the recovery of rents and profits from a cotenant is not barred by the statute of limitations until 4 years have elapsed from the accruing of such action.

2. The accrual of a cause of action means the right to maintain and institute a suit, and whenever one person may sue another, a cause of action has accrued and the statute begins to run, but not until that time. So whether at law or in equity, the cause of action arises when, and only when, the aggrieved party has a right to apply to the proper tribunal for relief.

3. Independently of any limitation prescribed for the guidance of courts of law, equity may, in the exercise of its own inherent powers, refuse relief because of laches where it is sought after undue and unexplained delay, and when injustice would be done, in the particular case, by granting the relief asked.

4. Under section 45-104, R.R.S.1943, a cotenant who collects the rents and profits on real estate is required to pay interest at the rate of 6 percent per annum for each year's rent to the other cotenants.

5. In the instant case the above applies for the years of 1956, 1957, 1958, and 1959.

6. The cotenant who has collected the rents and profits of the real estate and paid the taxes thereon for the years above mentioned is entitled to have credit for the taxes paid on such real estate.

Bruce K. Lyon, Grant, for appellants.

McGinley, Lane, Mueller & Shanahan, Ogallala, G. B. Hastings, F. E. Wanek, Grant, for appellees.

Heard before CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

MESSMORE, Justice.

The plaintiffs, Donald Ross Fraser, Kenneth Fraser, Dorothy Hyde Fraser (who has no interest in the real estate here involved except by virtue of being the wife of Kenneth Fraser), and Bruce K. Lyon, administrator of the estate of Carrie N. Fraser, deceased, brought this action in the district court for Perkins County against Alice N. Temple, William H. Long, and Wardie E. Bullock, defendants, to partition 160 acres of farm real estate located in Perkins County and, in addition, for an accounting of rents and profits received by the defendant Alice N. Temple who was a cotenant with Carrie N. Fraser, now deceased.

This case is for trial de novo on the record before us.

The issue on this appeal is confined to the accounting, and there is no issue insofar as the partition of the real estate is concerned.

Donald Ross Fraser and Kenneth Fraser, since the death of their mother, Carrie N. Fraser, are each owners, in fee simple, of an undivided one-fourth interest in said real estate.

The trial court found that the plaintiffs were entitled to an accounting of the rents and profits from the defendant Alice N. Temple for the years 1956, 1957, 1958, and 1959; that said plaintiffs were not entitled to an accounting for any rentals received by Alice N. Temple before 1956, for the reason that said claim was barred by the statute of limitations; that upon the accounting action there was due the administrator of the estate of Carrie N. Fraser, deceased, $1,806.43; that no demand was made by the administrator until the filing of the amended petition on November 8, 1960, and by reason thereof the administrator is not entitled to interest thereon until after said date; that the total interest due to date of decree was $56.59, making an aggregate amount due the administrator of $1,863.02; and that the administrator had a lien against the interest of the defendant Alice N. Temple in the land involved in this action in said amount, together with interest at 6 percent per annum until paid.

Judgment was rendered in accordance with the findings.

The plaintiffs filed a motion for new trial, which was overruled. The plaintiffs perfected appeal to this court.

On or about April 25, 1887, the Union Pacific Railroad Company conveyed the southeast quarter of Section 13, Township 11 North, Range 38 West, of the 6th P. M., in Perkins County, Nebraska, to Carrie N. Fraser and Alice N. Temple as tenants in common, in equal shares. Carrie N. Fraser died December 16, 1959.

The defendants, William H. Long and Wardie E. Bullock have been tenants on this land in the years 1956, 1957, 1958, and 1959.

The amended petition, for the second cause of action, alleged in substance that ever since the real estate was conveyed to Carrie N. Fraser and Alice N. Temple as tenants in common, Alice N. Temple had assumed control and management of the land, and during all of the period of time had leased and rented the land in her own name, collected all of the rents for the same, used them for her own benefit, and had never accounted to the other tenants in common for any of the rents that she collected, nor had she paid such other tenants any of the money she collected from the rents; and that during this period of tenancy in common, this land had been leased most of the time on a crop-sharing basis. The plaintiffs prayed for an accounting to be made of all the rents and profits collected by Alice N. Temple since she took exclusive control of the land, about April 25, 1887; that any amount found due the plaintiffs be decreed to be a lien upon that part of said real estate owned by Alice N. Temple; and, in addition, that interest be allowed such plaintiffs on all the sums found due them from the time each item was due and payable.

The defendant, Alice N. Temple, in her answer, alleged an affirmative defense to the plaintiffs' second cause of action that all accounting claims and demands of the plaintiffs, if any there be, which accrued more than 4 years prior to the commencement of this action were barred by the statute of limitations of the State of Nebraska; and that plaintiffs were guilty of laches prohibiting any recovery by them beyond 4 years prior to the commencement of this suit. This defendant prayed that as to the second cause of action, an accounting be made by the court as between the parties from July 6, 1956, through and including 1960; and that credit be given Alice N. Temple for the taxes paid by her upon this land from July 6, 1956, through and including 1960.

The plaintiffs' reply denied the allegations of the defendant Alice N. Temple's affirmative defense, admitted that plaintiffs collected one-half of the rents from the land for the year 1960, and renewed the prayer of their petition.

Carrie N. Fraser was a resident of Los Angeles, California, and Alice N. Temple is a resident of Birmingham, Alabama.

Alice N. Temple made an accounting of the rents, profits, and taxes for the years from 1956 through 1960, as follows: For 1956, rent received, $968.48, taxes paid $118.12; for 1957, rent received, $1,391.50, taxes paid, $127.12; for 1958, rent received, $1,552.75, taxes paid $120.82; for 1959, rent received, $45.20, taxes paid $149.86; and for 1960, rent received, $321.16, taxes paid, $150.30. She made the following explanation. The 1959 crop was hailed out, and Mr. Long planted milo, for which the amount shown was received in 196...