Maxwell v. Higgins

• Decision Date: 03 January 1894
• Parties: MAXWELL v. HIGGINS ET AL.
• Court: Nebraska Supreme Court

38 Neb. 671

57 N.W. 388

MAXWELL

v.HIGGINS ET AL.

Supreme Court of Nebraska.

Jan. 3, 1894.

Syllabus by the Court.

1. The record of a deed is not admissible in evidence, unless the certificate of acknowledgment is substantially in accordance with the statute.

2. Facts pleaded in a petition will be taken as admitted, where not specifically denied in the answer, and the answer avers, as to such facts, that the defendants, for want of knowledge, neither admit nor deny the averments of the petition.

3. A conveyance to two or more persons not acting in a fiduciary capacity will be presumed to create a tenancy in common, and not a joint tenancy.

4. Where one has been in possession of land, claiming ownership, and permits the land to be sold for taxes, and the grantee in the tax deed, although it was void on its face, enters into possession, and remains in possession for a period of more than a year, such possession interrupts that of the prior occupant.

5. Where a claimant of land acts under a power of attorney from an adverse claimant, and as such attorney leases the land in the name of the adverse claimant, he and his grantees are by such acts estopped from asserting that the possession of the tenant inured to him, and not to the adverse claimant.

6. One cannot, in the same action to quiet title, assert against one defendant that conveyances to such defendant were adverse to plaintiff's title, and a cloud thereon, and ask that they be canceled, and, against another defendant, assert that the possession of the first defendant was in subordination to plaintiff's title, and a link in the establishment of adverse possession.

Appeal from district court, Douglas county; Wakeley, Judge.

Action by William J. Maxwell against Stephen Hewitt Higgins and others to quiet title. From the decree rendered, plaintiff appeals. Affirmed.

Cornish & Robertson and Jas. F. Morton, for appellant.

A. S. Churchill, for appellees.

IRVINE, C.

This was a suit to quiet title to block 21, West Omaha. It was originally begun by Maxwell against Stephen Hewitt Higgins, Maurice J. McKelligon, the unknown heirs of Ellen McKelligon, the unknown heirs of Mehitable Higgins, and the unknown heirs of M. Swinny. The original petition alleged title in the plaintiff, as follows: That on January 9, 1867, Stephen Hewitt Higgins and Mehitable Higgins became joint owners of the land; that during 1867 Mehitable Higgins died intestate; that on January 27, 1870, Stephen Hewitt Higgins conveyed to Maurice J. McKelligon, and on February 11, 1887, McKelligon conveyed to plaintiff; that, from 1870 until the conveyance to plaintiff, McKelligon remained in the continuous and uninterrupted possession of the land; that, since the conveyance to plaintiff, plaintiff had remained in peaceful and quiet possession thereof. The petition further alleged that on March 4, 1878, the treasurer of Douglas county executed a deed to M. Swinny for the taxes of 1874; that the tax deed was void, for certain reasons set out in the petition; that Swinny died intestate, and that certain persons claiming to be her heirs conveyed, by a series of conveyances, to Ellen McKelligon; that Ellen McKelligon died testate, by her will attempting to devise to the children of Maurice McKelligon. The petition prayed that the tax deed, and other deeds made in pursuance thereof, be declared void. Upon January 18, 1890, a motion was made by Laura Jolliffe, Samuel S. Price, Jr., and Edward Sayre, asking that they be made parties defendant. No order seems to have been made upon this motion, but upon February 15, 1890, an order was made, granting the plaintiff leave to file a supplemental petition making these persons defendants. This supplemental petition alleged, in brief, that Price, Sayre, Laura Jolliffe, Sarah A. Selden, and Mehitable Higgins had conspired to cast a cloud upon plaintiff's title, and in pursuance of that conspiracy a deed had been made by Sarah A. Selden to Mehitable Higgins, of an undivided one-half of the property, and that thereafter certain other deeds were executed, set forth in particular, whereby it was attempted to convey this interest to Price, Sayre, and Jolliffe. It is further alleged that all of Sarah Selden's title had been conveyed to Mehitable Higgins and Stephen Hewitt Higgins January 9, 1867, but the deed of conveyance was defective in acknowledgment, through a clerical error only; that Mehitable Higgins never had any equitable title, but that Stephen Hewitt Higgins paid all the purchase money for the property; and that the subsequent deeds to the new defendants were made without consideration, and with notice of the facts. The supplemental petition also averred peaceable, continuous, open, notorious possession in plaintiff and his grantor from May 17, 1869, and prayed for an annullment of the deeds from Sarah Selden to Mehitable Higgins, and subsequent deeds in that chain of title. The new defendants, Price, Sayre, and Jolliffe, answered, alleging that Mehitable Higgins was the owner until December 17, 1889, when she conveyed to Jolliffe. They admit the tax deed was void, deny the possession of plaintiff and his grantor, aver that they bought for value and without notice, and ask for an establishment of their title to an undivided one-half. The reply is quite long, but amounts to a reassertion of the allegations of the supplemental petition, a denial of all other facts alleged in the answer, and the pleading of certain other facts, not necessary here to notice in detail. The decree recites that the cause was heard on the supplemental petition, the answer of Jolliffe, Price, and Sayre, and the reply thereto, and the evidence. It finds for the defendants named, as to the undivided one-half, quiets the title of that one-half interest in those defendants, and the other one-half in the plaintiff. The foregoing statement of the pleadings discloses a somewhat complicated state of title, and a rather anomalous series of issues. Their statement has been necessary, because of the importance of the pleadings, in determining some of the questions arising in the case. In its further consideration, it will be convenient to follow out the title as disclosed by the pleadings and evidence, with occasional references to averments not heretofore stated.

It appears inferentially from the pleadings, and directly by a formal admission in the bill of exceptions, that one Oscar B. Selden was the patentee of the land in controversy. There was offered in evidence the record of a deed dated January 9, 1867, from Oscar B. Selden and wife, purporting to convey the land to Mehitable Higgins and Stephen Hewitt Higgins. This record was objected to, and properly excluded, for the reason that the deed appeared to have been acknowledged by the...