Lewon v. Heath

• Decision Date: 17 February 1898
• Citation: 74 N.W. 274,53 Neb. 707
• Parties: LEWON v. HEATH.
• Court: Nebraska Supreme Court

53 Neb. 707

74 N.W. 274

LEWON

v.HEATH.

Supreme Court of Nebraska.

Feb. 17, 1898.

Syllabus by the Court.

1. Lands of which a person dies seised, and which he has not devised, descend to the heirs, and the title vests in them, subject, however, to the debts of the ancestor.

2. An heir may bring and maintain an action of ejectment relative to lands of which his ancestor died seised, against any and all persons except the administrator of the estate, and such as have a right or rights thereto derived from the administrator; and this the heir may do during the pendency of the administration proceedings, and prior to final settlement or any decree of distribution.

3. “To establish title to real property in this state by virtue of the operation of the statute of limitations, there must have been maintained by the party asserting it an actual, continuous, notorious, and adverse possession of the premises under claim of ownership during the full period required by the statute.” Twohig v. Leamer, 67 N. W. 152, 48 Neb. 248;Gatling v. Lane, 22 N. W. 227, 453, 17 Neb. 77;Lantry v. Parker, 55 N. W. 962, 37 Neb. 353.

4. No definite or fixed rule can be framed in relation to what shall constitute indicia of adverse possession. Such evidence must necessarily vary, and be in accord with the conditions existent in the portion of the political division or subdivision in which the property to which it is claimed applicable is situate, in regard to age of settlement, the extent and prevailing manner of cultivation, or use of lands, also the purposes for which the lands are or may be by nature adapted.

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

Action by Thomas F. Heath against Fred Lewon in ejectment. From a judgment for plaintiff, defendant brings error. Reversed.C. A. Baldwin, for plaintiff in error.

L. D. Holmes, for defendant in error.

HARRISON, C. J.

The defendant in error commenced this action of ejectment in the district court of Douglas county to recover the possession of a certain 40-acre tract of land at the time in the possession of the plaintiff in error. One of the defenses interposed was that of adverse possession for more than the statutory period of 10 years. After issues joined, and on the trial thereof, it was of the instructions to the jury: “First. That the plaintiff has shown a complete legal title to the premises in controversy, and is in law the legal owner of the premises described in the petition, and is entitled to the possession thereof. Second. You are also instructed that upon the question of adverse possession, as set up in the defendant's answer, that there has been a failure of proof upon his part, and that he has not shown such possession as the law contemplates to be adverse, open, notorious, and hostile for ten years prior to the commencement of this suit. You will, therefore, in rendering your verdict upon the question of the possession of the real estate described in the petition, find for the plaintiff.” It appeared from the testimony that one William B. Lacey, during the year 1860, obtained from the United States a patent conveying to him the land the recovery of the possession of which was sought in this suit. Lacey was a resident of the state of Ohio, and there died, leaving a widow and three sons, his heirs. After his death, an administrator of his estate was appointed by the probate court of the proper county in Ohio, who entered upon the duties of the settlement of the estate of the deceased. Neither the intestate during his lifetime, his heirs, nor the administrator of his estate, ever saw or had any actual physical possession of this land. The defendant in error introduced evidence of the conveyance by the widow to him, and her interest in the land, of date during the year 1888; also, conveyances by the three sons of their interests, respectively, in and to the land, one of date during the year 1883, one 1884, and the other 1888. There was no competent evidence that a decree of distribution of the estate had ever been made by the probate court.

It is argued by counsel for plaintiff in error that, in order to recover, it devolved on the defendant in error, inasmuch as he claimed by conveyances from the heirs, to show a final settlement of the estate and a decree of distribution by the probate court having jurisdiction. The administrator of the estate has the right to possession of the real estate of which the decedent died seised, and may collect the rents, issues, and profits thereof until the final settlement of the estate, or until delivered to the heir or devisee by order of the probate court. See section 202 of the law in regard to decedents (Comp. St. 1897, p. 527). It is conceded that the construction of this section, in connection with some others of our law relative to the same subject, must govern the disposition of the point presented. Lands of which a person died seised, where not devised, descend to the heirs in the order designated in the statute, subject, however, to the debts of the deceased (section 30, p. 503, Comp. St. 1897), and, it may be further said, subject to the administrator's statutory right of possession conferred by the section to which we have hereinbefore alluded. The title vests in the heirs, as it did at common law. Shellenberger v. Ransom, 41 Neb. 631, 59 N. W. 935;Johnston v. Colby (Neb.) 72 N. W. 313. There exists no reason or rule aside from the statutes which would seem potent in its call to us to declare that the heirs of a deceased person claiming title and possession of real estate of which their ancestor died seised, or a person claiming the title and right of possession of real estate by, through, or under them, shall not have the right to the possessory action of ejectment as against all persons in possession, except such as are so by right derived through, under, or from the administrator; nor, as we view and construe the provisions of the statute on the subject separately or connectedly, do they furnish any forcible argument or grounds for saying that to allow said heirs or their transferees the right to such action would place them as to their asserted rights, and the administrator and his possessory rights, in an irreconcilable, or any, conflict, or to hold that such heirs or persons may not enforce the right of possession by action as against all save and except the administrator or persons claiming by, through, or under him. If the title passes to and vests in the heirs, as it most certainly does, then the possessory right goes with it, except to the extent it is placed by law in the administrator, which is not exclusively or absolutely, but optionally, with him, and for the purposes indicated by statute, and for none other; and such purposes may be subserved and fulfilled consistently with the right of the heirs or persons claiming under them to assert and obtain possession from any parties, save those who are in as of right derived from the administrator.

In the case of Territory of Dakota v. Bramble (Dak.) 5 N. W. 945, it was said in reference to a section of the probate act of the territory, in the exact words of the section 202 of our law which we are considering, that “our statute was taken from Wisconsin, whence it was taken from Michigan, and was afterwards enacted in Nebraska and Oregon. A similar statute is found in Alabama and Mississippi, in all of which...