Hoover v. Haller
| Decision Date | 18 January 1946 |
| Docket Number | 31980. |
| Citation | 21 N.W.2d 450,146 Neb. 697 |
| Parties | HOOVER v. HALLER et al. |
| Court | Nebraska Supreme Court |
Appeal from District Court, Sheridan County; Meyer, Judge.
Syllabus of the Court.
1. A court of equity has jurisdiction to decree partition of personal property, and, if partition in kind is not possible to partition by sale.
2. An action in equity to partition personal property may be brought in the district court by one owning an undivided interest therein against the administrator of an estate of a deceased person, which estate is also the owner of an undivided interest in the personal property.
3. Where a conveyance of property is made to two or more persons, and the instrument is silent as to the interest which each is to take, the rebuttable presumption is that their interests are equal.
5. Generally the procedure to the followed by the courts should be that which expedites rather than delays the conclusion of litigation.
6. Generally where abstracts of title are furnished as an incident to the security of promissory notes, the co-owners of the notes secured are equally entitled to the use of the abstracts.
A C. Plantz, of Rushville, and E. D. Crites, of Chadron, for appellants.
John J. Olsson, of Gordon, and Robert O. Reddish, of Alliance, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
This is an action brought in the district court in equity to partition personal property. The trial court held that the action could be maintained. We sustain the trial court as to jurisdiction. The trial court held that the plaintiff was entitled to an undivided five-sixths interest in the property. We reverse the decision as to that and remand the case.
Plaintiff brought this action as guardian of the estate of his mother, Estella A. Powell. After the trial, and pending ruling upon a motion for a new trial, the ward died and the action was revived in the name of plaintiff as administrator.
The defendants are the administrator of the estate of Ellis Powell, deceased, and the children of said deceased.
Ellis Powell and Estella Powell were married in 1915. At that time Estella Powell was the owner of a tract of land comprising 1576.95 acres situated in Cherry and Sheridan Counties. Some time thereafter the two parties purchased, as tenants in common, two tracts of land totaling 780.5 acres. To secure funds to pay for the same they mortgaged the tract owned by Mrs. Powell and the first of the two tracts so purchased.
On April 27, 1940, the Powells sold the land for $16,000, receiving $6,000 in cash, and the balance was evidenced by ten promissory notes, each for $1,000, one payable each year thereafter and to the order of Ellis Powell and Estella Powell. The notes were secured by a mortgage on the real estate involved.
On March 30, 1941, Ellis Powell died intestate, and defendant Haller, as administrator, came into possession of the notes and mortgage. There were paid to defendant Haller, as administrator, the interest due on the notes and the principal amount due on the first three of the ten notes. Defendant Haller paid Mrs. Powell one-half of the principal and interest so collected.
Mrs. Powell became a resident of Dodge County where, on May 5, 1943, in a proceeding in the county court for that county, she was found to be incompetent, and the plaintiff was appointed and became the guardian of her estate.
Plaintiff, alleging the above facts, brought this action in partition alleging further that his mother was the owner of five-sixths of the land so sold; that the land owned by her was of equal or greater value than the land owned by Mr. Powell; that the $6,000 received in cash was used for the benefit of the parties according to their interests in the real estate; that Mrs. Powell had contributed at least five-sixths of the consideration for the notes; that she was entitled to a five-sixths share of the payments made on the notes instead of the one-half that was paid her. Plaintiff prayed that it be determined that Mrs. Powell is the owner of an undivided five-sixths interest in the notes and mortgage and in the proceeds of the payments made; that the estate of Mr. Powell is the owner of one-sixth thereof; that an accounting be had of the amounts received by the administrator and the amounts paid to Mrs. Powell; that the administrator be required to pay the balance found due to plaintiff and, if he fail to do so, that the plaintiff have a lien therefor upon his interest in the unpaid notes of Mr. Powell's estate; that the notes be apportioned among the owners according to their interest and, if that cannot be done without prejudice to the rights of the owners, that the notes and mortgage be sold and the proceeds apportioned; and that the plaintiff be awarded five-sixths thereof plus the balance to which she is entitled from the sums already collected, and the remainder to the defendant. The petition prayed for equitable relief.
To this petition defendants demurred. Their demurrer was overruled. Trial was had resulting in a decree for plaintiff. From that defendants appeal.
At the outset we are confronted with defendants' contention that the trial court erred in overruling the demurrer. It is defendants' contention that the trial court was without jurisdiction of the subject matter in this--that the matters sought to be litigated are within the exclusive jurisdiction of the county court in which the estate of Mr. Powell is being administered.
It is obvious that the property here involved is personal property. The question is: Does the district court have jurisdiction to entertain an action to partition the property?
We have held that a court of equity has jurisdiction to decree partition of personal property, and if partition is not possible, to regulate its use equivalent to partition, or to partition by sale. Riley v. Whittier, 100 Neb. 107, 158 N.W. 446.
A recognized authority states the rule as follows: 4 Pomeroy, Equity Jurisprudence (5th Ed.) § 1391, p. 1020.
It has been held that the co-owner of a promissory note may maintain an action for partition. Conover v. Earl, 26 Iowa 167 (cited by Pomeroy, supra).
Does the fact that defendant is the administrator of an estate of a deceased person prevent the district court as a court of equity from exercising jurisdiction to partition? We do not think so. The subject matter of the probate court's jurisdiction is the property of the deceased only. 40 Am.Jur., Partition, § 60, p. 49. The obvious purpose of a partition suit is to set off to each owner that which is his. In Phillips v. Dorris, 56 Neb. 293, 76 N.W. 555, we said: 'The object of a partition suit is to assign property, the fee-simple title to which is held by two or more persons as joint tenants, or tenants in common, to them in severalty.' That must be its result, so that as a result of the partition action there must be set off the administrar the property of which he is given jurisdiction in the probate court.
Article V, section 16, of the Constitution gives county courts 'original jurisdiction in all matters of probate, settlement of estates of deceased persons, * * *.' Section 24-503, R.S.1943, provides that county courts 'shall have exclusive jurisdiction of the probate of wills, the administration of estates of deceased persons, * * *.' It is to be noted that the language of these provisions does not go beyond the 'estate' of the deceased person.
Section 30-801, R.S.1943, provides: 'No action shall be commenced against the executor or administrator except actions to recover the possession of real or personal property, and actions for relief other than for the recovery of money only * * *.' This constitutes legislative sanction of actions against executors or administrators to recover the possession of real or personal property, and actions for relief other than for the recovery of money only. See Hazlett v. Estate of Blakely, 70 Neb. 613, 97 N.W. 808.
Certainly an action in partition is one for relief other than for the recovery of money only. Brownell v. Anderson, 117 Neb. 652 222 N.W. 55, was a suit involving the liability of a stockholder in a state bank, brought against the executor of the estate of a deceased stockholder. The above statute was considered. It was held that the action could be maintained. Fremont Farmers Union Cooperative Ass'n v. Markussen, 136 Neb. 567, 286 N.W. 784, 787, 123 A.L.R. 1287, was a creditors' suit against the administrator of an intestate's estate and one of the next of kin to subject the latter's interest to the satisfaction of some judgments, in which it was held that the suit could be maintained against the administrator of a decedent's estate, which was in process of administration in the county court. In the course of the opinion we said: '* * * it is to be borne in mind that the doctrine of custodia legis is one of practical convenience only, and not strictissimi juris. * * * The immunity of the custodia legis doctrine should not be extended beyond the actual demonstrated necessities of a particular situation, * * *.' See, also, Prudential Ins. Co. v. Bliss, 123 Neb....
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