Jessen v. Blackard

• Decision Date: 17 June 1955
• Docket Number: No. 33566,33566
• Citation: 160 Neb. 557,71 N.W.2d 100
• Parties: Morris JESSEN and Ilse Jessen, Appellees, v. Mary Beard BLACKARD, Appellant.
• Court: Nebraska Supreme Court

Page 100

71 N.W.2d 100

160 Neb. 557

Morris JESSEN and Ilse Jessen, Appellees, v. Mary Beard BLACKARD, Appellant.

No. 33566.

Supreme Court of Nebraska.

June 17, 1955.

Syllabus by the Court

1. A tenant holding over after the invalidation of a lease of school lands becomes a tenant at sufferance.

2. A tenant at sufferance on school lands is the owner of crops planted on such lands during the continuance of the tenancy.

3. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; and it is, in legal contemplation, as inoperative as though it had never been passed.

4. In an action wherein relief is sought pursuant to the terms of a statute which has been declared unconstitutional this court is required to regard the statute as nonexistent and to deny relief whether or not unconstitutionality of the act has been pleaded as a defense.

Torgeson, Halcomb & O'Brien, Kimball, for appellant.

C. M. Miller, Oshkosh, Robert A. Nelson, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

YEAGER, Justice.

In this case an opinion was previously adopted which appears at 159 Neb. 103, 65 N.W.2d 345. After rehearing and on further consideration it has been concluded that the determination therein is incorrect. The opinion is therefore withdrawn.

The action, as it comes to this court, is by Morris Jessen and Ilse Jessen, plaintiffs and appellees, against Mary Beard Blackard, Trustee, defendant and appellant, to recover damages in the amount of $50,000 for conversion of a crop of wheat grown and harvested by defendant on described school lands of which the defendant had been lessee and of which the plaintiffs were at the time lessees. In the action the defendant filed a cross-petition in which she claimed a right of recovery of money against the plaintiffs on account of their failure to pay the appraised value of improvements on the land which belonged to the defendant. Issues were joined on the petition and cross-petition and a trial was had to the court, a jury having been waived.

At the conclusion of the trial a judgment was rendered in favor of plaintiffs and against the defendant, including interest, in the amount of $20,253.71, and costs.

A motion for new trial was duly filed and overruled after which the defendant appealed from the judgment and the ruling on the motion.

There are numerous assignments of error as grounds for reversal but the question which is basic in the determination of this appeal is that of ownership of improvements placed on school lands by a lessee which remain thereon after the lands have been leased by the Board of Educational Lands and Funds to a later lessee and which have not been paid for by the later lessee, and as incidents of this the questions of whether or not plaintiffs were entitled to the judgment in their favor, and whether or not the defendant was entitled to a judgment on her cross-petition.

The pertinent facts upon which the adjudication must depend are not in substantial dispute. They are as follows: The defendant had been the owner of a school land lease on the lands in question which expired on December 31, 1950. On July 11, 1950, she applied for a new lease. Pursuant to the application she was granted a new lease for 12 years with the term beginning January 1, 1951. This lease was ineffective. It was ineffective for the reason that the statute under which it was issued was declared unconstitutional by the decision of this court rendered in State ex rel. Ebke v. Board of Educational Lands & Funds, 154 Neb. 244, 47 N.W.2d 520. On August 27, 1951, the defendant was notified that her lease was void and that it had been cancelled. Thereafter, but before a new lease was issued upon the lands, the defendant summer-fallowed the land and planted winter wheat thereon. On the 3rd, 10th, and 17th of April 1952, notice was published that a lease on the land would be sold at public auction on April 25, 1952. The sale was held and the plaintiffs made the highest bid. On that date the plaintiffs made application for lease in accordance with their bid and paid their bid, a lease fee, and the rental for the year beginning January 1, 1952, and ending December 31, 1952. In the application which was in writing the plaintiffs agreed to pay for the improvements as provided by law. Thereafter on April 28, 1952, a lease was issued to the plaintiffs for a 12-year period beginning as of January 1, 1952.

On June 13, 1952, no appraisement having been made of improvements on the land and no payment having been made therefor by plaintiffs, the defendant requested that an appraisement be made. In response thereto the county commissioners did on June 24, 1952, make an appraisement. The wheat crop was appraised at $53,750. From this was deducted as costs of harvesting $3,750 leaving a net appraisement of wheat of $50,000. The other improvements were valued at $1,526. From the total net appraisement of $51,526 they deducted $7,500 for insurance. In this wise the net value of improvements was fixed at $44,026. By stipulation evidence was adduced that the wheat which had been planted on the land was of the value of $7,500 as of January 1, 1952. This was objected to by the defendant on the ground that it was irrelevant, immaterial, incompetent, and not in proof of any issue in the case.

The plaintiffs not having paid or tendered payment in accordance with the appraisement, the defendant on July 11, 1952, proceeded to and did harvest the wheat. She harvested 14,853 bushels and 20 pounds of No. 2 wheat which she sold at the market price of $1.89 a bushel receiving therefor $28,072.80. After deducting the cost of harvesting she had net $23,682.20.

On July 17, 1952, still without having paid or tendered payment for improvements, plaintiffs demanded delivery by August 1, 1952, of 25,000 bushels of No. 1 wheat and a bill of sale of all improvements listed in the appraisement whereupon they offered to pay to defendant $44,026, the appraised value of wheat, plus $3,750 which the defendant had paid for harvesting the wheat crop. Apparently the defendant failed to respond to this offer. On August 4, 1952, plaintiffs paid to the county treasurer for the benefit of defendant $1,526, that being the appraised value of all improvements except the wheat. There is no information as to whether or not the defendant accepted this $1,526.

The claim of plaintiffs by their petition is for the reasonable value of the wheat which was harvested by the defendant. There is no offer or tender of set-off against this value of the amount of the appraisement.

The defendant by answer denied the claim of plaintiffs. By her answer and cross-petition she asserted substantially that she was entitled to receive payment pursuant to the terms of the appraisement. The response of plaintiffs to this was a general denial.

It appears that all points necessary to be considered in the determination of the rights of parties under both the action and the cross-action inhere in and flow from the question of whether or not the...