Lantry v. Wolff

• Decision Date: 07 October 1896
• Citation: 49 Neb. 374,68 N.W. 494
• Parties: LANTRY v. WOLFF.
• Court: Nebraska Supreme Court

49 Neb. 374

68 N.W. 494

LANTRY

v.WOLFF.

Supreme Court of Nebraska.

Oct. 7, 1896.

Syllabus by the Court.

1. A plaintiff in ejectment, to recover, must show a legal estate to the premises for which he sues, but the evidence of this legal estate need not be a perfect, legal paper title.

2. The title to land becomes complete in the adverse occupant when he and his grantors have maintained an actual, continued, notorious, and adverse possession thereof, claiming title to the same against all persons, for 10 years.

3. It is not essential that the claim of right or title to the land by the adverse occupant should be a valid legal claim, in order that the statute may run in his favor. The facts of the continuouspossession, its adverse character, and the claim of the occupant to be the owner of the premises, are the essential things to vest a title to real estate by occupancy thereof.

4. If the adverse possession of the occupant is a continuation of the possession of a prior adverse possessor, claiming title, and such occupant claims title from such prior possession, then the possession of the occupant may be tacked to that of such prior possessor.

5. A plaintiff in ejectment must recover upon the strength of his own title, but this does not mean that he is required to prove a title as against the whole world. It is sufficient if he prove title good as against the defendant. Carson v. Dundas, 58 N. W. 141, 39 Neb. 503, followed.

6. Evidence examined, and held to sustain the finding of the district court that defendant in error had acquired the legal title to the real estate in controversy by reason of the adverse occupancy thereof under claim of ownership by him and his grantors for 10 years prior to the date the plaintiff in error acquired any interest in or possession of said premises.

Error to district court, Douglas county; Duffie, Judge.

Ejectment by Alfred P. Wolff against Voctor J. Lantry. From a judgment for plaintiff, defendant brings error. Affirmed.

Chas. A. Goss, for plaintiff in error.

Curtis & Shields, for defendant in error.

RAGAN, C.

This is an action in ejectment brought to the district court of Douglas county by Alfred P. Wolff against Voctor J. Lantry to recover the possession of “lot 128 in the city of Florence, known as the ‘Mormon Grant.’ ” Wolff had a verdict and judgment, and Lantry brings the judgment here for review.

The only argument relied upon here for a reversal of the judgment is that the finding of the court--to whom the case was tried without a jury--is not supported by sufficient evidence. The evidence in the record shows that on the 7th of April, 1856, the Florence Land Company conveyed the real estate in question to Brigham Young, “trustee, in trust for the Church of Jesus Christ of Latter-Day Saints.” On the 14th of October, 1872, the county treasurer of Douglas county executed a treasurer's or tax deed of the lot to Ellen M. Piper. On the 16th of September, 1874, Piper, under and by the name of Wood, conveyed the lot to William Tubb. Tubb resided upon this lot, cultivated it, and paid the taxes upon it, until April 30, 1879, claiming title to the same by virtue of his deed from Wood. On the 30th of April, 1879, Tubb died intestate, leaving no heirs in this country. At the time of his death, and for some years before, his stepdaughter, Mrs. Sarah Foster, was residing with him on the property, and on his deathbed he said to her that she should have what he had when he died, and asked her if she would see that his debts were paid. She told him that she would, and he then said, “After they are paid, do what you like with the rest.” Mrs. Foster, in pursuance of this, remained in actual possession of the premises after the death of Tubb, claiming to be the owner of them by virtue of the conversation, just quoted, with Tubb during his last sickness, until the 3d of April, 1881, when she sold and conveyed the property to Mary Dunk. Mrs. Dunk and husband occupied the premises until the 25th of January, 1882, when they sold and conveyed them to William Reeves. He remained in occupancy of the premises until the 12th of July, 1884, when he sold and conveyed them to John F. Behm. Behm remained in the occupancy of the premises until the 10th of August, 1885, when he sold and conveyed them to Mary Mack; and she and her husband occupied the premises and cultivated them until the 9th of September, 1886, when they sold and conveyed them to Wolff, the defendant in error. Wolff took the actual possession of the premises, and leased them to one Larsen on the 25th of March, 1887, for two years. To establish his title and right to the possession of the premises, Wolff relied upon the actual, open, notorious, exclusive, and adverse possession thereof by himself and grantors, claiming ownership, for more than 10 years; and we are of opinion that the evidence just quoted abundantly sustains his claim, and justified the finding of the disrict court. It is true that a plaintiff in ejectment, to recover, must show a legal estate to the premises for which he sues. Code Civ. Proc. § 626. But the evidence of this legal estate need not be a perfect, legal paper title. The title to land becomes complete in an adverse occupant when he and his grantors have maintained an actual, continued, notorious, and adverse possession thereof,...