Richardson v. Doty

• Decision Date: 04 January 1889
• Citation: 41 N.W. 282,25 Neb. 420
• Parties: RICHARDSON v. DOTY ET AL.
• Court: Nebraska Supreme Court

25 Neb. 420

41 N.W. 282

RICHARDSON

v.DOTY ET AL.

Supreme Court of Nebraska.

Jan. 4, 1889.

Syllabus by the Court.

1. While the failure to pay interest on school-land contracts on the day it becomes due does not work a forfeiture of contract, yet the law requires good faith on the part of the purchaser, and upon a failure to pay such interest for 15 years, with no assertion of ownership of the real estate, nor of any interest therein, during 10 years of which time the property has been in the possession of a subsequent purchaser, who obtained the land from the state, in good faith, relying upon the abandonment of the first purchaser, the right of such first purchaser to assert his title as against that of the second will be barred.

2. When a cause is tried to the court without the intervention of a jury, the judgment will not be reversed on the ground of the admission of immaterial or incompetent evidence, if sufficient material and competent evidence was introduced and admitted to sustain the finding of the court.

Appeal from district court, Otoe county; POUND, Judge.E. F. Warren, for appellant.

D. T. Hayden, for appellees.

REESE, C. J.

This action was commenced in the district court of Otoe county. The cause of action, as stated in the petition of appellant, who was plaintiff below, is that on the 23d day of June, 1869, George R. Swallow duly purchased the S. W. 1/4 of the S. E. 1/4 of section 36, in township 9 N., of range 9 E., from the state of Nebraska, that being a part of the public school lands of this state, for the sum of $420, and on said day paid $42 of the purchase price, and executed and delivered to the state his promissory note for $378 for the unpaid part of the purchase price, and received a certificate of purchase for the land; that Swallow paid the interest on said note up to and including the year 1871, and was thereby vested with the title and estate in said land; that subsequently Swallow sold his interest in the said real estate to plaintiff, and delivered to him the certificate of purchase; that in 1885 the defendant Doty pretended to lease or purchase said land from the state; that plaintiff has offered and tendered to the county treasurer full payment of interest and principal in arrears, which was refused,--and that he now offers and tenders full payment of any sum due upon said purchase; that no notice of forfeiture was given to Swallow or the plaintiff, and that no proceedings were taken at law or otherwise to cancel said certificate of purchase, or to forfeit the estate in said land acquired by said Swallow and plaintiff; that the said note of $378 has never been surrendered, but is still held by the state. The prayer of the petition is that an accounting may be had for the purpose of ascertaining the amount due the state, and that he be permitted to pay the same into court; that plaintiff may be decreed to be the owner of the premises, as against the claims of the defendant Doty, and all persons claiming under him; that the pretended deed, sale, lease, or other evidence of title or possession of said defendant may be decreed void and of no effect, as against the right and title of the said plaintiff in the premises, and that the cloud created thereby may be removed; that Doty may be ordered and decreed to surrender possession of the property to plaintiff, and to account for the rents and profits thereof since he has been in possession, and for general relief. The answer of Doty denies the principal allegations of the petition, and alleges his purchase from the state, his receipt of the contract of purchase, his possession, and his claim of ownership; that on the 21st day of July, 1875, the state leased the land to Lawson W Lloyd, giving him a contract of lease therefor, and that Lloyd took possession thereunder, and afterwards sold the land, and transferred the lease and possession to defendant; that about the 1st day of January, 1885, Doty surrendered his lease to the state, and took a contract of purchase; that neither Swallow nor the plaintiff have paid anything on their contract since 1871; that the interest has become due and unpaid since that date, and that by reason of their failure to pay the interest or principal (as it became due) they forfeited all interest they had in the land, and all claims against the state for a deed therefor; that by reason of the neglect and default of plaintiff, and his failure to pay the interest and principal upon his contract, he is barred from maintaining an action thereon; and that by his failure to take possession of the land he waived any right to notice of the forfeiture by the state, but that notice of forfeiture was given. The answer also pleads the statute of limitations in bar of the action. The other allegations of the answer need not be noticed. A trial was had to the court, without the intervention of a jury, which resulted in a finding in favor of defendants, and a decree dismissing plaintiff's suit. The cause is appealed to this court by plaintiff.

It appears from the bill of exceptions that the purchase was made in 1869, as alleged in the petition, and that the interest was paid for two years thereafter, and that no...