Phillips v. Reynolds
| Decision Date | 12 July 1907 |
| Docket Number | 14,909 |
| Citation | 113 N.W. 234,79 Neb. 626 |
| Parties | ORAN B. PHILLIPS, GUARDIAN, APPELLANT, v. WILLIAM REYNOLDS, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Thurston county: WILLIAM A REDICK, JUDGE. Reversed.
REVERSED.
Thomas L. Sloan and C. L. Day, for appellant.
H. Chase, contra.
GOOD C. DUFFIE and EPPERSON, CC., concur.
This was an action to recover mesne profits of certain lands in Thurston county for the year ending March 1, 1903. The facts out of which this controversy arises are substantially as follows: Oran B. Phillips, plaintiff and appellant, is the guardian of Blanch R. Phillips, an Indian minor, to whom had been allotted the land in controversy. The instrument by which the United States government allotted the land in controversy to said minor contained the following conditions founded upon acts of congress applicable to such allotments: This allotment was made to said minor in May, 1900, pursuant to an act of congress passed and approved in August, 1882, and amended in March, 1893. Plaintiff, as guardian of the minor allottee, attempted to lease the land to the defendant Reynolds for a period of two years commencing March 1, 1901. Reynolds entered into possession and used and occupied the same for the term of the lease. Under the law by which the land was allotted to said minor, any contract touching the same was absolutely null and void. This would include a lease of the lands. By subsequent legislation of congress, provisions were made whereby leases of the lands so allotted might be made under the sanction and approval of the proper officers of the interior department. No such sanction or approval was obtained for this lease. The defendant Reynolds refused to pay the rent stipulated for, upon the ground that the lease was void. The plaintiff instituted an action in the district court for Thurston county to enjoin the defendant from occupying the said land and from harvesting the crops that he had planted thereon, apparently upon the ground that the defendant was a trespasser and was continually trespassing upon the land. In that action plaintiff alleged that defendant was insolvent and that he had no adequate remedy at law. Upon a trial of this cause, the court found against the plaintiff and dismissed his petition for want of equity. Thereupon the plaintiff instituted this action in the county court to recover the value of the possession of the premises for the year ending March 1, 1903. In his petition he alleged that his ward was the owner of the land, describing it, and averred that the defendant had entered upon said described premises and had used and occupied the same since the first of March, 1902, and had raised large and valuable crops thereon, and had had the use and benefit thereof, which use, occupation and benefit are of the value of $ 250. These averments were followed by allegations of demand upon, and nonpayment by, the defendant. The defendant answered, first, with a general denial, and, secondly, a plea of former adjudication, setting up the former action herein referred to. The trial in the county court resulted in judgment in favor of the plaintiff, and the defendant appealed to the district court, where, upon trial, that court found in...
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