Reams v. Sinclair

• Decision Date: 16 March 1911
• Docket Number: 16,346
• Citation: 130 N.W. 562,88 Neb. 738
• Parties: JOHN F. REAMS, APPELLANT, v. ALBERT W. SINCLAIR, APPELLEE
• Court: Nebraska Supreme Court

130 N.W. 562

88 Neb. 738

JOHN F. REAMS, APPELLANT, v. ALBERT W. SINCLAIR, APPELLEE

No. 16,346

Supreme Court of Nebraska

March 16, 1911

APPEAL from the district court for Franklin county: HARRY S. DUNGAN JUDGE. Affirmed.

AFFIRMED.

A. H Byrum and G. J. Marshall, for appellant.

H. W Short and W. C. Dorsey, contra.

ROOT, J. LETTON, J. not sitting.

OPINION

ROOT, J.

This is an action in ejectment. From a judgment rendered upon a directed verdict in the defendant's favor, the plaintiff appeals.

The petition contains the ordinary allegations with respect to the plaintiff's title and the defendant's wrongful possession. The answer is a general denial. The plaintiff by documentary evidence traced title from the United States to Fred Smith. Over the defendant's objections the plaintiff introduced in evidence the record of a deed executed by W. R. Curren, master in chancery, in and for Tazewell county, Illinois, which purports to convey title to the plaintiff's grantor. There are recitals in this instrument to the effect that it was made in chancery proceedings pending in the circuit court of Tazewell county, in an action wherein Deitrich C. Smith, Habbe Velde, Luppe Luppen, as surviving partners of T. & H. Smith & Company and of the firm of Pekin Plow Company, and Carrie Smith, Susan Velde and Catherine Luppen were complainants, and Louise Smith, as surviving wife and administratrix of the estate of Frederick C. Smith, deceased, and others were defendants, and that in said proceedings definitely described tracts of land in Illinois, South Dakota and Nebraska were ordered sold by the master, etc.

The tract involved in this action contains 80 acres, of which 50 acres are cultivated; all of it is rough, and the defendant occupied it for about two years preceding the commencement of the action. Six months' written notice to quit was served upon the defendant before this action was commenced. There is no proof of the circumstances under which the defendant secured possession of the land, whether under a claim of right or by force of arms, nor to show whether Fred Smith, or any person by his authority, at any time occupied the premises. There is no proof other than the recitals in the master's deed that Fred Smith is dead, nor is there a scintilla of evidence that T. & H. Smith & Company or the Pekin Plow Company at any time had any interest in the land, or that Fred Smith held title thereto for these partnerships or either of them. Under these circumstances did the court err in directing a verdict for the defendant? The cause is submitted on the theory that the proceedings in Illinois were in partition. Upon that hypothesis the decree of the Illinois circuit court could not in itself affect the title to land in Nebraska.

In Schick v. Whitcomb, 68 Neb. 784, 94 N.W. 1023, we held that partition proceedings are in rem, and that the courts of one state have no jurisdiction to partition lands lying within the boundaries of another. See, also, Cartwright v. Pettus, 2 Ch Cas. (Eng.) 214, 22 Eng. Rep. (Reprint) 916; Wimer v. Wimer, 82 Va. 890, 5 S.E. 536; Pillow v. Southwest Virginia Improvement Co., 92 Va. 144, 23 S.E. 32; Farmers' Loan & Trust Co. v. Postal Telegraph Co., 55 Conn. 334, 11 A. 184. If the suit in Illinois were prosecuted to distribute the assets of a partnership dissolved by the...