Majerus v. Santo
| Decision Date | 06 August 1943 |
| Docket Number | 31619. |
| Citation | 10 N.W.2d 608,143 Neb. 774 |
| Parties | MAJERUS et al. v. SANTO et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Estates upon condition subsequent, which, after having been fully vested, may be defeated by a breach of the condition are never favored in law and no deed will be construed to create an estate upon condition unless the language to that effect is so clear that no room is left for any other construction.
2. Courts of equity, under the proper circumstances, will grant specific performance of contracts to leave property to others.
3. Where the owners of an interest in real property convey the same but by agreement contained in the instrument of conveyance retain an interest in the premises such interest will support the imposition of a restriction on alienation where it is reasonably necessary to protect the interest retained.
4. When, in a partition suit, the question of title is drawn in issue it does not make a dismissal of the partition suit necessary but the court, being one of general jurisdiction and administering both legal and equitable remedies, is invested with authority in that proceeding to first try the issues as to the title, and, after they are determined to proceed in the partition action to partition of the property among the parties found to be the owners thereof.
5. A cause of action for partition of one tract of land is improperly joined in a single bill with a cause of action for a partition of another tract where some of the persons interested in one are not interested in the other and do not derive their interests from a cotenancy of both tracts.
6. Partition of two or more parcels of real estate may be made in one proceeding if the title to all the parcels sought to be partitioned is derived from a cotenancy as a common source of title, though some of the cotenants, parties to the proceeding for partition, may be interested in only one or some of the parcels and not in all.
7. In a proceeding for partition, whether at law or in equity all of the cotenants are indispensable parties and such of them as do not join as plaintiffs must be made defendants and the same is true of the successors in title of any of the cotenants.
8. Under section 20-2172, Comp.St.1929, any creditor having a specific or a general lien upon all or any portion of the property being partitioned may or may not be made a party at the option of the plaintiff.
9. An heir or devisee of an estate cannot maintain an action for distribution or partition until the debts, allowances, and expenses against said estate have been paid or provided for unless he give a bond with approved sureties to pay the same except, where the allegations of the petition allege the solvency of the estate as well as the sufficiency of the personal assets to pay the debts against it and this is conclusively established by the evidence.
Joseph L. Gagnon and J. H. Falloon, both of Falls City, for appellants.
Paul P. Chaney, Cain & Cain, Archibald J. Weaver, and Wiltse & Wiltse, all of Falls City, Paul F. Good, of Lincoln, and Wallace Hawkins, and Earl A. Brown, both of Dallas, Tex., for appellees.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This action was commenced in the district court for Richardson county by Catherine Majerus, Anna Caverzagie, Mary Wissman, Louise Sprung, Theresa Larson, Sophia, Reschke, and Lawrence Santo, as plaintiffs and who are appellants here, against Theresa Santo, Charles Santo, Fred Santo, Richardson County Bank of Falls City, Nebraska, a corporation, Magnolia Petroleum Co., a corporation, William Herbster, and Paul P. Chaney, administrator, with the will annexed, of the estate of Charles J. Santo, deceased, as defendants and who are appellees here, for the purpose of canceling and setting aside a deed to certain lands described in their third amended petition or in the alternative for the specific enforcement thereof and for a determination of the rights of the plaintiffs in and to said lands and for partition thereof. From an order of the district court sustaining the demurrers of each and all of the several defendants and dismissing the action, the plaintiffs have appealed.
The demurrers of the several defendants raise the following questions: First, that there is a misjoinder of parties plaintiff; second, that there is a misjoinder of parties defendant; third, that there is a misjoinder of the causes of action; fourth, that the facts alleged are insufficient to state a cause of action. In considering the court's ruling on these demurrers, we must, of course, apply the rule as announced in Van Horn v. Lincoln Sales Outlet Co., 127 Neb. 301, 255 N.W. 36, 37: "A demurrer is an admission of the truth of all facts properly averred in the pleading demurred to; it admits, however, only such facts as are well pleaded and all intendments and inferences that may fairly and reasonably be drawn therefrom."
The third amended petition, to which the several demurrers of the defendants were directed and which demurrers the court sustained, alleged that Josephine Santo, who prior to her marriage to Charles J. Santo was Josephine Litty and a daughter of Magnus Litty and Annie Litty, inherited from her parents 160 acres of land in Butler county, Nebraska, and also her distributive share of their personal property; that after her marriage to Charles J. Santo a part of these funds were used on April 21, 1883, to purchase the southeast quarter of section 4, except 20 acres off the west side thereof, in township 2, range 17, in Richardson county, Nebraska, and on February 8, 1889, a part of these funds were used to purchase the southeast quarter of the southwest quarter and the southwest quarter of the southeast quarter, and a tract of land described by metes and bounds as commencing at the northeast corner of section 5, and running south 60 rods, west 80 rods, north 20 rods, east 40 rods, north 40 rods, east 40 rods to place of beginning, all in section 5, township 2, range 17, in Richardson county, and both tracts contained approximately a total of 240 acres and were taken in the name of Charles J. Santo and Josephine Santo as tenants in common; that Josephine Santo died intestate May 19, 1895, and at the time of her death she owned an undivided one-half interest in the aforesaid real estate and also possessed personal property consisting of money, cattle, horses, and other livestock and left surviving her besides her husband, Charles J. Santo, all of the plaintiffs, who are her children, and a daughter Josephine Santo who died subsequent to her mother and at the time of her death was a minor and not married; that the father, Charles J. Santo, took possession of said real estate and personal property without administering the estate and collected rents and profits from the real estate and used the personal property as his own; that subsequently, on February 3, 1906, from the rents and profits of the lands in which the mother had an undivided one-half interest at the time of her death, Charles J. Santo purchased the northeast quarter of the northeast quarter of section 9 and the north half of the northwest quarter of section 10, township 2, range 17, in Richardson county, being 120 acres, and on October 4, 1911, from the rents and profits of this same land he purchased the south half of the northwest quarter of section 10, township 2, range 17, in Richardson county, being 80 acres, and from the same source did on May 23, 1914, purchase the south half of the northeast quarter and the southeast quarter of the northwest quarter and the northeast quarter of the southeast quarter of section 9, township 2, range 17, in Richardson county, being 160 acres.
That Charles J. Santo remarried and the defendant Theresa Santo is his widow and the defendants Charles Santo and Fred Santo are children born of the second marriage. On July 26, 1919, all of the plaintiffs, except Lawrence Santo, entered into an agreement of settlement with Charles J. Santo, their father as to the personal property of their mother and for the use and rentals of the real estate of which she died seised of an undivided one-half interest and also for a deed conveying their interest in and to the premises of which their mother died seised and in consideration therefor, and prior to its execution, their father, Charles J. Santo, agreed he would not sell or convey the lands therein described and would hold it free of encumbrances, that he would not make a will and at the time of his death all of his children, by both his first and second marriage, should share in his estate, and that he would not convey any of the lands or encumber them, of which he was then owner, and which lands are described in the petition, which said deed contained the following: "And the further consideration that said Charles J. Santo agrees to die intestate, and not alienate the property hereinafter described and that his children, above named, born as the fruit of his marriage with the said Josephine Santo, nee Litty, deceased, shall inherit and share in his estate the same as the children of said Charles J. Santo born of his second marriage, ***" and at the time of said agreement Charles J. Santo was the owner and in possession of the 360 acres of land purchased from the rents and profits of the 240 acres as previously stated. Since the agreement, the plaintiffs have made no demands upon the said Charles J. Santo for any rents and profits of said premises and have fully complied with the agreement, but that the said Charles J. Santo violated and broke the conditions of the agreement by giving to the Richardson County Bank on March 17, 1936, a mortgage for $8,000 signed by himself and wife, ...
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