Hendrix v. Boggs

• Decision Date: 28 May 1884
• Citation: Hendrix v. Boggs, 15 Neb. 469, 20 N.W. 28 (Neb. 1884)
• Parties: J. R. HENDRIX, PLAINTIFF IN ERROR, v. GEORGE H. BOGGS ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 28

15 Neb. 469

J. R. HENDRIX, PLAINTIFF IN ERROR, v. GEORGE H. BOGGS ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

May 28, 1884

ERROR to the district court for Sarpy county. Tried below before NEVILLE, J.

AFFIRMED.

Congdon Clarkson & Hunt, for plaintiff in error, cited: 2 Wharton's Ev., § 1278. Ins. Co. v. Tisdale, 91 U.S. 238. Carroll v. Carroll, 60 N.Y. 123. Carver v. Jackson, 4 Peters, 1, 83. Jones v Sherman, 56 Miss. 599. Miller v. Hurford, 13 Neb. 13. Haller v. Blaco (dissenting opinion), 10 Neb. 40.

W. J Connell, for defendants in error, cited: Taylor v. Courtnay, ante p. 190. 1 Greenleaf Ev., § 550. 3 Wash. Real Prop., 684. Newman v. Jenkins, 10 Pick. 516. Cunningham v. Smith, 70 Penn. State, 450. Tisdall v. Ins. Co., 28 Iowa 12.

OPINION

MAXWELL, J.

This is an action of ejectment brought by Boggs against Hendrix to recover the possession of certain real estate in Sarpy county. Hendrix in his answer claims the land under a tax deed dated April 24th, 1877, and possession thereunder for more than three years. On the trial of the cause, however, no such deed was offered in evidence, but one dated January 25th, 1881, upon a sale which took place on the sixth of November, 1878. The deed was excluded, and judgment entered in favor of Boggs.

The errors relied upon in the brief of the plaintiff will be considered in their order:

1st. Boggs claims title to the premises through a deed from William Dorsheimer and wife and Elizabeth Clifton, heirs and devisees of one Philip Dorsheimer, who resided in Erie county, New York, and where what purports to be his last will, devising said real estate to William Dorsheimer et al., was admitted to probate. This will was afterwards admitted to probate in Sarpy county, and a copy thereof introduced in evidence.

It is claimed that this was error, without proof of the death of Philip Dorsheimer. There seems to be a conflict in the authorities, in this country at least, as to proof of the death by letters of administration. To some extent this conflict may be explained by the difference in the procedure at common law and under statutes. At common law the will itself is the primary evidence as to lands; therefore if there are several executors, though some of them are minors or have not proved the will, still all must join in an action. 3 Wash. R. P., 684.

But under our statute executors derive their title and authority from the letters testamentary, and only such as have taken out letters can join in an action--in other words, have the right to act as executors. In order to authorize a court to grant letters testamentary, a petition must be presented to it, alleging, among other things, the death of the testator, and the court before admitting the will to probate must so find. This is sufficient in the absence of any opposing proof. 1 Greenleaf Ev., § 550, and cases cited. The will was therefore properly admitted in evidence.

2. It is claimed that the court erred in sustaining the objections to the tax deed. There are fourteen of these, but two of which will be noticed, as they are fatal to the validity of the deed. First, That no proof was offered showing that notice had been given to occupants of the lands of the time when the redemption would expire.

Sec. 3 art. IX. of the constitution,...