Pierson v. Lawler
| Decision Date | 05 February 1917 |
| Docket Number | 19029 |
| Citation | 161 N.W. 419,100 Neb. 783 |
| Parties | FRED PIERSON, APPELLANT, v. DAVID A. LAWLER ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Keith county: HANSON M. GRIMES JUDGE. Affirmed as modified.
MODIFIED AND AFFIRMED.
J. G Beeler, for appellant.
Hoagland & Hoagland, contra.
OPINION
This is an action to partition the northwest quarter of section 34, township 13, range 35 west, in Keith county. The case was presented to the trial court on controverted issues relating to title and to the respective shares of the owners. When the land belonged to Josiah Weir, he died intestate September 20, 1901, leaving as his only heirs a brother, John C. Weir, and two sisters, Grace Beveridge and Mary Young, the latter being an alien residing in Scotland. Grace Beveridge died in September, 1906, leaving as her only heirs nine children. Through conveyances from John C. Weir, Mary Young and three Beveridge heirs, plaintiff claims an undivided seven-ninths of the land. Defendant, David A. Lawler, concedes that plaintiff owns the interests of three Beveridge heirs, but, subject thereto, claims title to the land through foreclosure of a mortgage, a decree quieting title, and conveyances from six Beveridge heirs. From a decree confirming in defendant David A. Lawler an undivided eight-ninths, plaintiff has appealed.
At the time of Josiah Weir's death the land was incumbered by a mortgage. The Farm Land Company, as holder of the mortgage, commenced a foreclosure suit February 23, 1903, making Grace Beveridge, Mary Young and John C. Weir defendants; summons being served upon the latter, but not upon the other two. A decree of foreclosure and an order of sale followed. In the publication of the notice of sale, in the appraisal, in the sale, and in the sheriff's report of the sale, the land was described as the northeast quarter instead of the northwest quarter. The sale was confirmed by the district court, and the sheriff executed and delivered to the Farm Land Company, as purchaser, a deed correctly describing the mortgaged premises. In 1908 the Farm Land Company commenced a suit to quiet its title and brought into court as defendants John C. Weir, Mary Young and the Beveridge heirs. John C. Weir employed an attorney to make a defense for all of the defendants. After issues were joined by the pleadings the trial court, upon a stipulation by counsel, entered a decree quieting in the Farm Land Company title to an undivided one-half and in the Beveridge heirs title to an undivided one-half. The stipulation recited that Mary Young was a subject of Great Britain residing in Scotland, and provided further: "That the said Mary Young was incapable of inheriting any interest in said real estate, and that the said John C. Weir and the said Grace Beveridge each succeeded to an undivided one-half of said land." The interest acquired by the Farm Land Company was subsequently sold to defendant David A. Lawler, who purchased also the interests of six Beveridge heirs.
It is contended that the error in the description of the mortgaged land invalidated the sheriff's sale, that the interest of John C. Weir was not foreclosed, and that plaintiff acquired it by purchase. The determination of the question thus raised is not necessary to a decision, since it is conclusively established by the decree in the suit to quiet title that John C. Weir had no interest in the land. He had been fully informed of the action his attorney would take in entering into the stipulation and he acquiesced therein. It follows that he is bound by the decree, that he did not thereafter have any interest in the land, and that he conveyed nothing to plaintiff.
The principal question presented by the appeal relates to the rights of Mary Young, from whom plaintiff procured a quitclaim deed. It is argued that, under a treaty between the United States and Great Britain, she inherited one-third of the land of her deceased brother, and that the decree barring her inheritance in the suit to quiet title is void as to her for the reason that it was based on an unauthorized stipulation. The treaty upon which plaintiff relies provided:
"Where on the death of any person holding real property (or property not personal), within the territories of one of the contracting parties, such real property would, by the laws of the land, pass to a citizen or subject of the other, were he not disqualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it...
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