Merrill v. Wright

Decision Date18 September 1902
PartiesMERRILL v. WRIGHT ET AL.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. It is error to award a writ of assistance against a person who entered upon land pendente lite, claiming an independent title, not derived from or in succession to any of the parties to the suit or their privies.

2. One who is in possession in good faith, without collusion, under a void tax deed, assertingtitle thereunder, claims by an independent title, not derived from that of the owners of the fee, and may not be dispossessed under a writ of assistance.

3. The purpose of the rule as to lis pendens is to prevent third persons, during the pendency of the litigation, from acquiring interests in the land which would preclude the court from granting the relief sought.

4. Hence such rule has no application to independent titles, not derived from any of the parties to the suit nor in succession to them.

5. Section 85, Code Civ. Proc., does not extend the rule so as to include persons acquiring rights or interests in no way dependent upon or derived through those of persons made parties to the suit.

Commissioners' opinion. Department No. 2. Appeal from district court, Douglas county; Dickinson, Judge.

Petition for a writ of assistance by H. A. Merrill against Joanna C. Wright and others. Order granting the writ, and defendants appeal. Reversed.

W. A. Saunders and J. W. Woodrough, for appellants.

H. W. Pennock, for appellee.

POUND, C.

In one form or another this cause has been before this court several times. Merrill v. Wright, 41 Neb. 351, 59 N. W. 787;Id., 54 Neb. 517, 74 N. W. 955. It now comes up on appeal from an order granting a writ of assistance, which presents a very curious state of facts. The suit was brought in 1890 to foreclose a tax lien. The owners of the property and those in possession under them were duly made parties. There were two appeals, and sale was not had until 1902. Meanwhile one Scott had purchased the property for taxes subsequently assessed, and had afterwards taken a tax deed accordingly. Claiming under this deed, he brought an action of ejectment against the owners and those in possession, in the course of which he obtained a judgment. No direct attack seems to have been made upon this judgment, and a suit in equity to vacate it and set it aside resulted adversely to the plaintiffs therein. Scott v. Wright, 50 Neb. 849, 70 N. W. 396. After that suit was determined, Scott obtained possession by writ of restitution pursuant to the judgment. By this time sale had been had under decree of foreclosure, and the purchaser demanded possession by virtue of his deed. Not obtaining it on demand, application was made for a writ of assistance. The petition for the writ and the answer of Scott disclose substantially the facts above stated, and on such showing the writ was awarded.

We are of opinion that this is not a case for a writ of assistance. That writ may issue only against parties to a suit, or persons in privity with them, who have been concluded by a decree, and yet refuse to permit the purchaser at judicial sale under such decree to take possession. Terrell v. Allison, 21 Wall. 291, 22 L. Ed. 634;Howard v. Bond, 42 Mich. 131, 3 N. W. 289. Questions of title are not to be tried on an application for the writ, as against persons in possession, claiming adversely to the parties, and not bound by the decree. Barton v. Beatty, 28 N. J. Eq. 412;Exum v. Baker, 115 N. C. 242, 20 S. E. 448, 44 Am. St. Rep. 449. It is error to award it against a person who had entered upon land pendente lite, claiming an independent title, not derived from or in succession to any of the parties to the suit or their privies. Exum v. Baker, supra; Ricketts v. Association, 67 Ill. App. 71;Hagerman v. Heltzel, 21 Wash. 444, 58 Pac. 580;Toll v. Hiller, 11 Paige, 228;Van Hook v. Throckmorton, 8 Paige, 33. Without considering the merits of Scott's claim, the nature of the title asserted stamps it at once as new and independent. What rule should be applied if his possession under the tax deed and judgment in ejectment based thereon were shown to be fraudulent and collusive, in order to defeat or hinder the foreclosure case, we need not decide. A void tax deed is color of title, and as such may be the basis of an adverse possession. Lantry v. Parker, 37 Neb. 353, 55 N. W. 962. The claim of title acquired under it is adverse to, not derived from, that of other claimants. The nature of the claim under the judgment in ejectment must depend upon the issues litigated therein; and, as it is conceded the judgment was based upon a title alleged to have been derived from the state under its revenue laws, it is manifest that there was not a mere succession to the interest of the Wrights, as in case of an action founded on a conveyance by them, or on a sheriff's deed upon a money judgment recovered against them. Even though the tax deed was void, a party in possession thereunder in good faith claims by an independent title, and may not be dispossessed under a writ of assistance, Exum v. Baker, supra.

It is claimed, however, that Scott acquired whatever interest he may have in the land pending the foreclosure suit, and subject to such decree as might afterwards be rendered therein. Had he taken under or in privity with any of the parties to the suit, that would be the result undoubtedly. State v. Nebraska Distilling Co., 29 Neb. 700, 46 N. W. 155;Rapid Transit Co. v. Rundle, 34 Neb. 559, 52 N. W. 563;Clark v. Charles, 55 Neb. 202, 75 N. W. 563. But we have seen...

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8 cases
  • Hadley v. Corey, 30620.
    • United States
    • Supreme Court of Nebraska
    • November 28, 1939
    ......, during the pendency of the litigation, from acquiring interests in land which would preclude the court from granting the relief sought.” Merrill v. Wright, 65 Neb. 794, 91 N.W. 697, 101 Am.St.Rep. 645.        7. If a purchaser or encumbrancer, subject to lis pendens, becomes a party to ......
  • Meek v. Lange
    • United States
    • Supreme Court of Nebraska
    • September 18, 1902
    ......We are cited to the Texas cases of Wright v. Hays, 34 Tex. 253;Allison v. Shilling, 27 Tex. 450, 86 Am. Dec. 622;Brewer v. Wall, 23 Tex. 585, 76 Am. Dec. 76; and Goff v. Jones, 70 Tex. 576, 8 ......
  • Meek v. Lange
    • United States
    • Supreme Court of Nebraska
    • September 18, 1902
    ...... entirely void that a payment made on it by the vendee can not. be recovered back. We are cited to the Texas cases of. Wright v. Hays, 34 Tex. 253; Allison v. Shilling, [*] 27 Tex. 450; Brewer v. Wall,. [+]. 23 Tex. 585, and Goff v. Jones, 70 Tex. 572, 576, 8. S.W. 525, ......
  • Houston Oil Co. v. Village Mills Co.
    • United States
    • Supreme Court of Texas
    • April 18, 1934
    ...Equity Jur. (4th Ed.) vol. 2, p. 1237, § 637; Harrod v. Burke, 76 Kan. 909, 92 P. 1128, 123 Am. St. Rep. 179; Merrill v. Wright, 65 Neb. 794, 91 N. W. 697, 101 Am. St. Rep. 645. Our statute, as we construe it, does not call for an expansion of the rule in this The question arises as to the ......
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