Lincoln Rapid Transit Co. v. Rundle

• Decision Date: 18 May 1892
• Citation: 34 Neb. 559,52 N.W. 563
• Parties: LINCOLN RAPID TRANSIT CO. v. RUNDLE.
• Court: Nebraska Supreme Court

34 Neb. 559

52 N.W. 563

LINCOLN RAPID TRANSIT CO.

v.RUNDLE.

Supreme Court of Nebraska.

May 18, 1892.

Syllabus by the Court.

1. Under section 85 of the Code, as it existed prior to 1887, where an action had been brought which affected the title or possession of real estate, and summons had been served or publication made, third parties were charged with notice of the pendency of the action, and while the action was pending could acquire no interest in the subject-matter, as against the plaintiff's title.

2. That in the case of Little v. Giles, 41 N. W. Rep. 186, 25 Neb. 313, and 42 N. W. Rep. 1044, 27 Neb. 179, it was decided that Miles had no interest in the property in controversy, and hence his grantees took no interest therein.

Error to district court, Lancaster county; CHAPMAN, Judge.

Ejectment by William H. Rundle against the Lincoln Rapid Transit Company. Verdict and judgment for plaintiff. New trial denied. Defendant brings error. Affirmed.J. R. Webster, for plaintiff in error.

Sawyer & Snell and Marquett, Deweese & Hall, for defendant in error.

MAXWELL, C. J.

This is an action of ejectment, brought in the district court of Lancaster county by the defendant in error against the plaintiff in error to recover possession of lots 7, 8, and 9, in block 38, in Dawson's addition to Lincoln. The answer of the defendant below is, in substance, a judgment in the United States circuit court. On the trial of the cause the jury returned a verdict in favor of Rundle, and for $100 damages; and, a motion for a new trial having been overruled, judgment was entered on the verdict. Rundle claims title through a conveyance from Edith J. Dawson, who derived title to the lots through the will of her husband, Jacob Dawson. A copy of the will is set out in the case of Little v. Giles, 25 Neb. 313, 41 N. W. Rep. 186. After the widow had conveyed all the lots in question, and received the consideration therefor, she married again, whereupon the children assumed that the real estate reverted to them; and they made a conveyance to Burr and Wheeler, who afterwards conveyed to Giles, the father-in-law of Burr, and a nonresident of the state, who brought a number of actions in the federal court to recover the possession. Thereupon all or nearly all of the purchasers of lots joined, and brought an action in the district court of Lancaster county for an injunction to quiet their title, and prevent a multiplicity of suits. The prayer of that petition is as follows: “Wherefore, these plaintiffs pray that the judgment and decree of this court that the said defendants, and each and all of them, all persons claiming through and under them, or any of them, or acting or assuming to act by the authority or with the connivance of the defendants, or any of them, be restrained and enjoined during the pendency of this action from, in any suit, action, or proceeding at law or in equity, or the courts of this state or any other courts, assailing, traducing, or questioning the title or possession, or right of possession, of these plaintiffs, or any of them, in or to said lots, tract, or parcel of land, or any of them, or by such suit or proceedings, or in any other manner, to interfere with or question the possession of these plaintiffs, or any of them, or their tenants or other persons holding under them or any of them, to any of said lots or parcels of land, or to the rents, issues, profits, use, or occupation of the same, or any of the same, and that the said defendants, and each and all of them, be likewise restrained, during the pendency of this action, each and all of them, from executing, acknowledging, or delivering or authorizing, advising or conniving at, the execution, acknowledgment, and delivery of, or the recording or filing for record of, any deed or pretended deed or instrument of writing conveying or incumbering, or pretending or assuming to convey or incumber, or in any manner affect, the title, occupancy, or possession, or right of possession, of said lots or parcels of land, or any of them, or interfering with the same in any manner whatever; that, on the final hearing of this cause, said injunction be made perpetual. (2) And the plaintiffs further pray that a certain pretended deed of conveyance, bearing the date about September 15, 1879, executed by the defendants, William R. Dawson, M. C. Dawson, and M. S. Dawson, as grantors, purporting to convey said lands to the defendants Lionel C. Burr and Highland H. Wheeler, and now of record in the clerk's office of Lancaster county, Neb., and also a certain pretended deed bearing the date about the 27th day of April, 1880, executed by the defendant Melita C. D. Tillman as grantor, and purporting to convey said lands to the defendant Giles, and now of record in said clerk's office, and also a certain pretended deed of conveyance executed by defendants Albert L. Dawson and A. A. Knicely as grantors, and purporting to convey said lands to the defendants Burr and Wheeler, and also a certain pretended deed of conveyance executed by said defendants Highland H. Wheeler and Lionel C. Burr, and purporting to convey said lands to the defendant Giles, and now of record in said clerk's office, be, each and all of them, canceled, set aside, and held for naught. (3) That each and all of said plaintiffs be adjudged and decreed to have a good and valid and indefeasible title in fee simple of the several lots, tracts, pieces, and parcels of land so held and owned by them, as aforesaid, free and clear of all claims, lien, demands, interest, title, or incumbrances of the said defendants, or any of them, or of any person claiming through or under them, or any of them, and for such other or different judgment, order, decree, or relief as in equity and good conscience ought to be rendered herein.”

This action was brought on the 27th of January, 1882, and a temporary injunction allowed as prayed, which injunction seems to have continued in force until final judgment, and alleged, in substance, that the title had been collusively transferred to Giles; that it was not a bona fide transfer, but made for the purpose of removing the cause to the federal court; that Burr and Wheeler were the real owners of the land; and that the federal court had no jurisdiction. This action was removed by Giles into the circuit court of the United States. Issues were joined and proof taken, which showed beyond question that Giles was not a bona fide purchaser, but merely clothed with apparent ownership for the purpose of removing the cause. 13 Fed. Rep. 100. After the decision in the circuit court the case was taken to the United States supreme court, where on the 1st day of November, 1886, the judgment of the circuit court was reversed, (10 Sup. Ct. Rep. 623,) the court holding that the United States circuit court had no jurisdiction, and it was remanded to the state court for further proceedings. Soon after this decision was rendered, Giles transferred all the lots in controversy to one Miles, a relation of Burr, who at once commenceda number of actions in ejectment in the federal court, which court had been directed to remand the cause, for a number of the very same lots which were in litigation in the cause to be remanded. The cases seem to have been pressed to a speedy...