Keens v. Gaslin

• Decision Date: 03 July 1888
• Citation: 38 N.W. 797,24 Neb. 310
• Parties: KEENS ET AL. v. GASLIN
• Court: Nebraska Supreme Court

24 Neb. 310

38 N.W. 797

KEENS ET AL.

v.GASLIN

Supreme Court of Nebraska.

July 3, 1888.

Syllabus by the Court.

Where an amended petition is filed, the second and third counts of which are in conflict with the first, the proper motion is to strike out inconsistent matter, or require the plaintiff to elect upon which cause of action he will proceed.

In case of doubt, where the pleader has stated a cause of action in equity and also one at law, in such a manner as to leave it uncertain which one he intended to pursue,resort may be had to the prayer for relief to determine the character of the action.

Where a cause of action in equity is set forth in a petition as to remove a cloud from the title of real estate, and in the second count, facts to show the plaintiff's right to an action of ejectment are pleaded, both being for the same tract of land, a demurrer on the ground of misjoinder will not lie.

In an action brought by the person holding the legal title to real estate to remove a cloud therefrom, and quiet the title, all persons having an adverse interest may be made defendants.

Error to district court, Buffalo county; MORRIS, Judge.

Calkins & Pratt, for plaintiff in error.

John M. Stewart, for defendant in error.

MAXWELL, J.

In 1882, one John S. Lemon brought an action in the district court of Buffalo county against the plaintiffs in error to remove a cloud from certain real estate described in the petition which he alleged was owned by him. Various transfers of the property took place pending the litigation, and in 1884 the defendant in error became possessed of said land, and, on application to the district court, he thereupon was substituted as plaintiff, and on leave filed an amended petition as follows: “That the said John S. Lemon was, on the 1st day of January, 1877, owner in fee-simple of the following described premises situated in the county of Buffalo, state of Nebraska, to-wit: The west 1/2 southwest 1/4 of section 20, township 10 north, of range 15 west. That said plaintiff, William Gaslin, Jr., since the commencement of this case, obtained title in fee-simple to said premises by deed duly executed, acknowledged, and delivered, and by leave of court was duly made plaintiff in this case, and is now the owner in fee-simple of said land, and the real party in interest in this case, and has been since his substitution for said Lemon. In the year 1877, at the time provided by law, the board of county commissioners in said Buffalo county, among other taxes for that year, and without authority of law, levied a tax known as ‘sinking fund,’ levied as a sinking fund for the payment of part of the principal and interest on all outstanding and floating debts of the county, excepting the bonded debts of said county, contrary to law. Said pretended sinking fund tax was duly carried upon the tax-list for that year, and on the 6th day of November, A. D. 1878, said pretended tax stood unlawfully charged against the property above described in the sum of $1.00; and on the said 6th day of November, A. D. 1878, the treasurer of said Buffalo county, without authority of law, sold said premises for said illegal tax, together with other taxes legally chargeable against the same, amounting in all to the sum of $10.42, to Francis G. Keens, defendant. Subsequent taxes have been paid on said premises by said Francis G. Keens, as follows: 1878, $6.36; 1879, $4.00; 1880, $5.00. Interest on $9.42, of 1877 tax, and on subsequent taxes to the commencement of this action, is the sum of $7.38; making in all paid by said Keens, with interest at the rate of 12 per cent., of the sum of $32.16, on the 15th day of November, A. D. 1881, the plaintiff tendered to said Francis G. Keens, the amount paid by him in purchasing said lands, and subsequent taxes, with 12 per cent. interest thereon, which he refused; and the plaintiff now offers to pay the taxes justly [due] against said land, with interest at 12 per cent. per annum. Afterwards, and on the 22d day of November, 1880, the treasurer of said county issued to said Francis G. Keens a tax deed for said land under said pretended sale, and on the 22d day of November, A. D. 1880, said tax deed was duly filed for record in the office of the county clerk for Buffalo county, and was duly recorded in Book K of Deeds of said county, on page 93, and still remains unsatisfied of record, and is a cloud upon the plaintiff's title. On the 1st day of July, 1881, the said Francis G. Keens, and Ella J. Keens, his wife, conveyed by warranty deed said lands to William J. Neeley, which deed was thereafter duly filed for record in the county clerk's office for Buffalo county aforesaid, and still remains unsatisfied of record, and a cloud upon the plaintiff's title. On the 1st day of July, A. D. 1881, this said William J. Neeley and Rebecca S. Neeley, his wife, gave their mortgage deed of that date to said Francis G. Keens upon said land, which deed was thereafter duly filed for record and recorded in the county clerk's office for Buffalo county, and still remains of record unsatisfied, and a cloud upon the plaintiff's title. That on April 20, A. D. 1883, the said John S. Lemon sold and conveyed, by deed duly executed, delivered, and recorded in said Buffalo county records of deeds, the said premises described in said petition to the late Samuel L. Savidge. That said Samuel L. Savidge, deceased, in said Buffalo county, November 30, 1883, whose interest, and interests of whose estate and heirs, were duly and legally sold to said Gaslin on or about the 3d day of May, 1884, by administrators of said estate of said Savidge, to pay debts of said estate, and a deed of conveyance of said land, executed and delivered to said Gaslin by administrators of said estate, which deed, and all proceedings therein had, were in due and legal form, and the said Gaslin is now the owner, and has been since the 3d day of May, 1884, in fee-simple, of said land, and the real and only party plaintiff in interest in this case. The plaintiff further shows to the court that said tax...