Holdrege v. Livingston

• Decision Date: 24 May 1907
• Docket Number: 14,824
• Citation: 112 N.W. 341,79 Neb. 238
• Parties: FRANCES K. HOLDREGE, APPELLANT, v. WILLIAM B. LIVINGSTON ET AL., APPELLEES
• Court: Nebraska Supreme Court

112 N.W. 341

79 Neb. 238

FRANCES K. HOLDREGE, APPELLANT, v. WILLIAM B. LIVINGSTON ET AL., APPELLEES

No. 14,824

Supreme Court of Nebraska

May 24, 1907

APPEAL from the district court for Cass county: PAUL JESSEN, JUDGE. Affirmed.

AFFIRMED.

Byron Clark, for appellant.

C. S Polk, contra.

CALKINS C. AMES and JACKSON, CC., concur.

OPINION

CALKINS, C.

On September 17, 1904, the plaintiff filed her bill seeking to quiet title to a tract of land, the record title to which was in Elijah Noyes, and other property. Constructive service was had upon Elijah Noyes, and on December 6, 1904, a decree was rendered in favor of the plaintiff, quieting title in her to all of said property. Subsequently, and on February 13, 1905, an amended petition was filed, seeking to quiet title as against Mrs. Elijah Noyes, wife of Elijah Noyes. To this amended petition the three sons of Elijah Noyes, Elmer, Charles and Rolland, filed answer, denying the allegations of the plaintiff, and alleging the death of their father prior to the decree of December 6, 1904. The decree of the district court found that Elijah Noyes was presumed to be dead on December 6, 1904, when the decree quieting title against him was entered, and adjudged that, because of his death at said time, said decree was a nullity. The plaintiff's claim as against Noyes was founded upon adverse possession, and the court found that the property in dispute had not been in the adverse possession of the plaintiff as against the answering defendants Noyes, and dismissed the petition as to them. From this decree the plaintiff appeals.

1. To show adverse possession for the requisite period of time, it is necessary for the plaintiff to tack her possession under a tenant who took possession in 1898 or 1899 to that of one Siever, a prior tenant of the plaintiff's adjoining land. The testimony of Siever is that he fenced the land in 1893; that he pastured cattle for one of the Noyes sons in payment of rent in 1893; and that in 1894 or 1895 (the witness is uncertain which) he refused to further pasture cattle on the ground that he did not "think they had any better right to it than he had." At the time he left, he sold his fence to Mr. Holdrege, the plaintiff's husband. There is no evidence that he transferred or attempted to transfer any right of possession or claim to the land to the plaintiff or to Mr. Holdrege. It is essential that each occupant show a derivative title from his predecessor in order to link his possession with that under the original entry. Zweibel v. Myers, 69 Neb. 294, 95 N.W. 597; Montague v. Marunda, 71 Neb. 805, 99 N.W. 653. In the case at bar, the plaintiff could not claim anything under the possession of Siever without showing a transfer of his claim in the land. There is wanting this essential element; and the trial judge could not well have found otherwise than he did upon the evidence.

2. The plaintiff, however, claims that the decree of December 6 1904, was conclusive, and that the finding that the presumption of the death of Elijah Noyes existed at the date thereof is unsupported by the evidence and contrary to law. There is nothing in the record to show the terms and conditions of the order allowing the plaintiff to file an amended petition making the wife of Elijah...