Hall v. Hooper

• Decision Date: 04 February 1896
• Docket Number: 6028
• Citation: 66 N.W. 33,47 Neb. 111
• Parties: GEORGE T. HALL ET AL., APPELLANTS, v. EDWARD HOOPER ET AL., APPELLEES
• Court: Nebraska Supreme Court

66 N.W. 33

47 Neb. 111

GEORGE T. HALL ET AL., APPELLANTS, v. EDWARD HOOPER ET AL., APPELLEES

No. 6028

Supreme Court of Nebraska

February 4, 1896

APPEAL from the district court of Hall county. Heard below before HARRISON, J.

AFFIRMED.

R. C Glanville, R. R. Horth, and Charles G. Ryan, for appellants.

References as to plaintiffs' right of action: 2 Washburn, Real Property, p. 495*; Tiedeman, Real Property, sec. 715; Mettler v. Miller, 129 Ill. 630; 1 Am. & Eng. Ency. Law, 237; Ainsfield v. Moore, 30 Neb. 385.

Reference as to construction and effect of the deed to Mrs. Milton S Hall: Dworak v. More, 25 Neb. 735.

References as to the effect of judicial sales and sheriffs' deeds Lang v. Hitchcock, 99 Ill. 550; Mettler v. Miller, 129 Ill. 630; Kirk v. Bowling, 20 Neb. 260; Barrett v. Stradl, 41 N.W. 439 [Wis.].

Abbott & Caldwell, contra.

References: McKesson v. Hawley, 22 Neb. 692; Boyd v. Blankman, 29 Cal. 19; Moore v. Miller, 43 F. 347; Pope v. Hooper, 6 Neb. 178; Castner v. Walrod, 83 Ill. 172; Carson v. Murray, 3 Paige Ch. [N.Y.] 483; Blain v. Harrison, 11 Ill. 384; Learned v. Cutler 18 Pick. [Mass.] 9; Forbes v. Sweesy, 8 Neb. 520.

IRVINE, C. HARRISON, J., not sitting.

OPINION

The issues are stated by the commissioner.

IRVINE, C. J.

For a proper understanding of this case a statement of the substance of the pleadings is necessary. The appellants George T. Hall and Mary J. Monroe, in their petition allege that one Mrs. Milton S. Hall was in her lifetime the owner in fee of certain land in Hall county; that she died seized of said land November 24, 1871, leaving surviving her her husband, Milton S. Hall, who is still living, and the plaintiffs, her only children by said Milton S. Hall; and that thereby Milton S. Hall became seized of an estate by curtesy in said premises, and the plaintiffs became owners in fee of the remainder. The petition then alleges certain proceedings and deeds in pursuance thereof, whereunder the defendant Hooper claims to have divested the estate and become the owner in fee of the land. These proceedings are pleaded at length. It is then alleged that all these proceedings were void as to the plaintiffs and their mother for want of jurisdiction of the person, and that they were of no effect to pass any title to Hooper except the life estate of Milton S. Hall, which has not yet been determined. The plaintiffs also aver that they had no notice of the claim of Hooper to the fee of the land until within two years of the commencement of the action. They allege that said proceedings and deeds constitute a cloud upon their title, and pray that the deeds be adjudged void in so far as they purport to convey the estate of the plaintiffs, and that title to the remainder be quieted in plaintiffs. There are certain other averments against the other defendants claiming under a mortgage from Hooper and leading to a prayer that this mortgage be set aside, but these averments it will not be necessary to notice, as the decision of the case must be based entirely upon the issues between the plaintiffs and Hooper. The answer alleges possession and the exercise of acts of ownership by Hooper since 1872; denies that Mrs. Hall was ever the owner or in possession of the land; denies that the deed under which she claims was ever executed or delivered to her, or that she ever paid any consideration for the property; and, in short, denies most of the allegations of the petition, and closes with a plea of the statute of limitations.

From the pleadings and evidence the facts in regard to the title appear as follows: In 1868 Hooper commenced an action against Milton S. Hall for the recovery of a debt. A writ of attachment was issued and one Peterson was garnished. Peterson, it would be inferred, never answered the order of garnishment, but in 1869, he being indebted to Hall in about the sum of $ 1,200, conveyed the land in controversy by deed running to "Mrs. Milton S. Hall," and at the same time, and as part of the same transaction, a mortgage was executed to Peterson by "M. S. Hall" to secure notes amounting to $ 1,006, that being the difference between the estimated value of the land and Peterson's debt to Hall. Mrs. Hall was not present, and it is perfectly clear that the transaction was one between Hall and Peterson for Hall's benefit, Mrs. Hall having no interest therein. Hooper proceeded to judgment in his action against Hall, and caused execution to be levied on the land. He then, in September, 1870, began an action in the nature of a creditors' bill, naming as defendants M. S. Hall, Mrs. Milton S. Hall, and Peterson. The petition in that case alleged the recovery of the judgment and levy of execution, alleged the attachment and garnishment of Peterson, and charged that the conveyance to Mrs. Hall was the result of a conspiracy between Hall and Peterson to cheat and defraud Hooper. It alleged that Mrs. Milton S. Hall was a fictitious person, and that Hall was the person intended by the deed from Peterson. The prayer was that "Mrs. Milton S. Hall" be declared to mean "M. S. Hall;" that the mortgage to Peterson be declared void against plaintiff, and that the land be subjected to the judgment. There was an attempt by the publication of notice to obtain constructive service upon all the defendants; but as the affidavit for publication made no reference whatever to Mrs. Hall, it may be assumed that the proceedings as to her were absolutely void. Hall and Peterson made default and a decree was entered directing a sale of the land in satisfaction of Hooper's judgment. Under this decree all but forty acres were sold to Hooper, at a price more than sufficient to satisfy his judgment. Subsequently, in 1876, Hooper having become the owner of the notes to secure which Hall had given the mortgage, he brought an action against Hall and his then wife, but not against the heirs of the first Mrs. Hall, he having remarried, to foreclose the mortgage. Service in this case was constructive, but the affidavit for publication is conceded to have been fatally defective. A decree of foreclosure was entered and the remaining forty acres sold under that decree to Hooper. It will be observed that the plaintiffs claim relief solely on the ground that the proceedings were void as to them and their ancestor,--the proceedings on the creditors' bill, because no jurisdiction was obtained as to Mrs. Hall; the foreclosure proceedings, because no jurisdiction was obtained over any person and the plaintiffs were not even made parties. No offer to redeem from the mortgage is made, because the plaintiffs' theory is that the title being in Mrs. Hall, the mortgage executed by Hall alone created no lien upon her land. In addition to the issues already stated the defendant pleads that plaintiffs are estopped by claiming under the deed to Mrs. Hall from denying the validity of the mortgage executed by Hall as a part of the same transaction. The plaintiffs in reply charge two estoppels. They charge that Hooper is estopped to deny the validity of the conveyance to Mrs. Hall because he claims under a deed purporting to convey her interest. They further charge that the defendant is estopped to assert the validity of the mortgage because of his successful impeachment thereof by the proceedings on the creditors' bill. The district court found "that the plaintiffs have now no cause of action," and dismissed the case. From this decree the plaintiffs appeal. It may be inferred from the use of the word "now" in the finding above quoted, as well as from the direction which the argument has largely taken, that the district court was of the opinion that an action to quiet title would not lie while Hooper was in actual possession of the land. It is clear that plaintiffs, while admitting an estate in Hooper for the life of Hall, could not yet maintain ejectment. If this was the view of the district court it was fully warranted by the case of State v. Sioux City & P. R. Co., 7 Neb. 357, followed by several other cases implying that an action to quiet title will not lie against one in actual possession of the land in controversy. A defendant in such actual possession is entitled to the rights accorded by an action of ejectment where the plaintiff, claiming the legal title, seeks to oust him from possession. (Gregory v. Lancaster County Bank, 16 Neb. 411, 20 N.W. 286; Snowden v. Tyler, 21 Neb. 199, 31 N.W. 661; Betts v. Sims, 25 Neb. 166, 41 N.W. 117.) The rule stated in these cases is unquestionably correct; but in State v. Sioux City & P. R. Co., supra, and some other cases, its limitations were lost sight of. The distinction was not observed between an action to establish title and an action to recover possession of the land. Section 57, chapter 73, Compiled Statutes, provides: "That an action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest and quieting the title to said real estate." Section 59 provides: "Any person or persons having an interest in remainders or reversion in real estate shall be entitled to all the rights and benefits of this act." In Foree v. Stubbs, 41 Neb. 271, 59 N.W. 798, decided since this case was tried in the district court, the object of this statute was carefully considered. State v. Sioux City & P. R. Co. was overruled in so far as it denied a right to proceed to quiet title against one in possession, and the rule established in conformity with the language of the statute. If Hooper was tenant of the life estate, a possessory action could not now be maintained against him; but the...