Phillips v. Dorris

• Decision Date: 05 October 1898
• Parties: PHILLIPS v. DORRIS ET AL.
• Court: Nebraska Supreme Court

56 Neb. 293

76 N.W. 555

PHILLIPS

v.DORRIS ET AL.

Supreme Court of Nebraska.

Oct. 5, 1898.

Syllabus by the Court.

1. Only a joint tenant or a tenant in common of real estate can maintain an action for its partition.

2. An administrator or executor is neither a joint tenant nor a tenant in common with the heir or devisee of his decedent, and cannot maintain an action for the partition of his real estate.

3. The object of a partition suit is to assign property, the fee-simple title to which is held by two or more persons as tenants or joint tenants in common, to them in severalty.

4. The raising of questions of adverse title in a partition suit does not oust the court of jurisdiction nor render a dismissal of such suit necessary; the court may hold the case, determine the issues, and then proceed with the partition.

Error to district court, Saunders county; Bates, Judge.

Action by Jason G. Miller against John D. Phillips, Omaha & North Platte Railroad Company, and William Cook. Upon the death of plaintiff, the action was revived by A. U. Dorris as his administrator. Judgment for partition of lands. Defendant John D. Phillips appeals. Reversed.J. R. Gilkeson and T. B. Wilson, for plaintiff in error.

L. E. Gruver, C. S. Allen, and J. W. Deweese, for defendants in error.

RAGAN, C.

Jason G. Miller brought a suit to the district court of Saunders county against John D. Phillips and others. In his petition Miller claimed to be the owner in fee of an undivided one-third interest in certain real estate described in the petition. The prayer was for a partition of the land. Before the trial of the action Miller died, and it was revived in the name of his administrator. The case then proceeded to trial, and resulted in a judgment partitioning the lands. Neither the widow, the heirs, nor devisees of Miller were made parties to the action. The judgment of the district court is brought here for review on error by Phillips, the defendant below.

1. Only a joint tenant or a tenant in common of real estate can maintain an action for its partition. Code Civ. Proc. § 802; Hurste v. Hotaling, 20 Neb. 178, 29 N. W. 299;Barr v. Lamaster, 48 Neb. 114, 66 N. W. 1110. If Miller died intestate, the title to the lands which he owned at his death descended to and vested in his heirs at law; if he died leaving a will, the title vested in his devisee on probate of the will. Miller's administrator was neither a tenant in common nor a joint tenant of such heir or devisee. True, by the statute the administrator or executor of a decedent is given the right to the possession of such decedent's real estate until the estate is settled. Comp. St. c. 23, § 202. But this statute, of course, does not invest the administrator with any estate or interest in the realty of the decedent;...