Lydick v. Gill

• Decision Date: 18 March 1903
• Docket Number: 12,585
• Citation: 94 N.W. 109,68 Neb. 273
• Parties: JONATHAN LYDICK v. THOMAS R. GILL ET AL
• Court: Nebraska Supreme Court

94 N.W. 109

68 Neb. 273

JONATHAN LYDICK v. THOMAS R. GILL ET AL

No. 12,585

Supreme Court of Nebraska

March 18, 1903

ERROR to the district court for Burt county: JACOB FAWCETT DISTRICT JUDGE. Affirmed.

Affirmed.

H. E Carter and Ira Thomas, for plaintiff in error.

Albert W. Jefferis and Frank S. Howell, contra.

BARNES C. OLDHAM and POUND, CC., concur.

OPINION

BARNES, C.

The plaintiff in error commenced this suit in ejectment in the district court for Burt county against Riley T. Gill, Robert Light, Walter Lydick, Ed Latta, Peter Kessler, Hiram C. Lydick and R. A. Barnett, for the recovery of certain real estate described in his petition. Summons was issued and served on all of the defendants above named. H. C. Lydick, Walter Lydick and Peter Kessler failed to answer, and a default was entered against them. The answer of R. A. Barnett was a general denial and a disclaimer of title to any of the lands described in the plaintiff's petition, except a part thereof which was described specifically in the answer, amounting to only about six acres, and it was alleged therein that as to that part he and his grantors had acquired title by adverse possession and the operation of the statute of limitations. To this answer the plaintiff replied, admitting defendants' occupancy of the tract described in the answer, and denying each and every other allegation contained therein.

Defendant Ed Latta answered as follows: First, a general denial; second, a claim of ownership of only a part of the lands described in plaintiff's petition, and a disclaimer as to the remainder; third, adverse possession and the statute of limitations; fourth, affirmative matters relating to the mutual establishment of boundary lines, mutual construction of partition fences of a permanent and lasting character, complete enclosure of all the lands described in the answer; that one David Deaver was the owner of about eighty acres of the land included with the other part thereof; the establishment of the boundary lines of the whole of Deaver's holdings in 1893; subsequent deeding to defendant Latta of all of the body of land, except about eighty acres; that since the establishment of the boundary lines and construction of the partition fences, Deaver, at a very large expense, had enriched and improved the entire body of land, redeemed it from a wild condition and brought it to a high state of cultivation; alleged the planting and growing of fruit trees, construction of buildings, barns, sheds, cribs, wells, windmills, tanks, fences and other improvements, all made openly and notoriously and with the full knowledge and consent of the plaintiff, and without any objection on his part; and, in fact, matters amply sufficient to create an equitable estoppel as against the plaintiff's claim to any portion of the lands described in the answer.

Plaintiff replied, admitting the possession of Latta, and denying each and every other allegation contained in his answer.

Thomas R. Gill filed a separate answer in which he alleged, first, that he had been served as Riley T. Gill, and his true name was Thomas R. Gill; second, a general denial; third, that he was in possession and owner of about twenty acres of the land lying south of a portion of the Latta claim; fourth, that in 1892 the plaintiff and his brother, Hiram C. Lydick, owned the land lying south and west thereof, and by mutual agreement and consent the boundary and division lines were established, dividing their lands, and in so doing he surrendered to the said Lydicks by compromise about fifty acres of the land then claimed by him; that a boundary line and division fence was established between them, and it was agreed that the same should constitute the boundary lines between his own and the Lydick lands; fifth, adverse possession and the statute of limitations; sixth, a disclaimer of any interest in any other portion of the land.

Plaintiff replied to this answer, first, by a general denial, except as to admission; second, admitted the true name of the defendant to be Thomas R. Gill; third, admitted that in 1892 plaintiff and H. C. Lydick were jointly owners of the land, as alleged in said answer; fourth, plaintiff set up an adjudication of title in a suit wherein plaintiff and his brother, H. C. Lydick, were plaintiffs, and Gill was the defendant, and that since said time plaintiff had purchased the entire interest of his brother.

Robert Light filed a separate answer, which contained, first, a general denial; second, a disclaimer to all lands, except a small tract described therein; third, as to that part of the land adverse possession and the statute of limitations.

To this answer the plaintiff replied by a general denial, except admissions, and admitted possession by Light of the lands described in his answer.

After entering the default of Kessler, Walter Lydick and H. C. Lydick, a trial was had to a jury on the foregoing issues, which resulted in a verdict against the defaulting defendants and in favor of the defendants Latta, Light, Barnett and Gill, and against the plaintiff. The plaintiff thereupon filed a single motion for a new trial as to each and all of the successful defendants. The motion was overruled and a judgment was entered on the verdict in favor of the said defendants. The plaintiff thereupon prosecuted error to this court, and filed one petition in error herein, directed against the defendants Latta, Gill, Light and Barnett jointly, praying that the judgment of the lower court be reversed and a new trial of the whole cause as to all of the defendants be granted.

It is contended that the court erred in refusing to give the paragraph number one of the instructions asked for by plaintiff. Before considering this question it is proper to state that it was stipulated on the trial, and the court instructed the jury, that the land in question was an accretion to lands owned by the plaintiff, and that their verdict should be for the plaintiff unless they should further find from a preponderance of the evidence that defendants, or some of them, were entitled to recover under one or more of the affirmative defenses set out by them in their respective answers. It may be further stated that it appears that the court properly instructed the jury as to the issues raised by the pleadings in the way of affirmative defenses. The instruction tendered was as follows:

"The court instructs you that, should you find, from a fair preponderance of the evidence, that since the commencement of the occupancy of any of the lands in controversy in this action by the defendant Thomas R. Gill, should you find from the evidence that he has actually occupied any, an action was commenced against him for the possession of these lands, or any of them, by the plaintiff or any one to whose title he has succeeded and that that action was prosecuted to judgment, and resulted in favor of the plaintiff or plaintiffs therein and against the said Thomas R. Gill, and that said judgment has never been reversed; then you are instructed that as to so much of said land as was included in said judgment, the said Thomas R. Gill and all persons claiming under him are forever estopped from claiming any right or interest in said lands, because of any occupancy by him of the same, or by reason of any claim, conveyance, or color of title, which he may have made or possessed prior to the said judgment, and that his occupancy thereof since that time has not been adverse to the title which was in that action adjudged against him, unless you should find that since that time he has been in the actual, open, notorious, exclusive possession thereof, claiming to be the owner thereof as against the whole world, for a period of ten years, before the 8th day of April, 1901, under an occupancy initiated since the rendition of said judgment."

There are several reasons why this instruction was properly refused. It was not confined to the land claimed and occupied by Gill at the time of the present suit, and it appears that different tracts of land had been in litigation and in dispute between Gill and the plaintiff from time to time before this suit was brought. It was properly refused because it is shown by the record and the bill of exceptions that the judgment mentioned in the instruction had been enjoined in a suit in equity for that purpose, and had been annulled and set aside as void and of no force and effect because of a lack of a sufficient description of any land therein. Therefore the cases cited by counsel for the plaintiff, in which it was held that where adverse possession was interrupted by an adjudication of the question by a judgment of a court of record, afterwards the land could not be claimed by adverse possession, because the future possession by a party to such judgment was not under any claim of right or color of title, and was not subject to the statute of limitations, are not in point. No claim of right can be based on a judgment or decree which has been vacated or annulled, and, while the language of the instruction comprehended only a reversal of the judgment, still it was as effectually disposed of by the decree in the injunction suit as though it had been reversed on a direct proceeding for that purpose. The question of the effect of the judgment mentioned in the instruction was a question of law for the court, and should not have been submitted to the jury. If the plaintiff...