Ross v. McManigal
| Decision Date | 18 December 1900 |
| Docket Number | 9,331 |
| Citation | 84 N.W. 610,61 Neb. 90 |
| Parties | JERRY K. ROSS, APPELLEE, v. DANIEL MCMANIGAL, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Washington county. Heard below before DICKINSON, J. Affirmed.
AFFIRMED.
Andrew R. Oleson and Clark C. McNish, for appellant.
F. S Howell, contra.
Jerry K. Ross, claiming to be the owner of the real estate described in the petition, instituted this action in the district court for Washington county, to quiet and confirm his title against an adverse claim of ownership set up by the defendant, Daniel McManigal. All the disputed questions were resolved in favor of the plaintiff, and he was awarded the relief for which he prayed. The first argument made for a reversal of the judgment is that the defendant being in possession of the property and the plaintiff out of possession, the court was without authority to adjudicate upon their rights in this form of action. This contention can not be sustained. It is now firmly settled in this state, contrary to some early decisions, but in accordance with the plain purport of the statutes (Compiled Statutes, 1899, ch. 73, sec. 57), that a party, whether in actual possession or not, may maintain a suit to establish his title to land against any adverse claimant. Foree v. Stubbs, 41 Neb. 271, 59 N.W. 798; Hall v. Hooper, 47 Neb. 111, 66 N.W. 33; Eayrs v. Nason, 54 Neb. 143, 74 N.W. 408.
The only other question relied upon for a reversal is that the evidence does not warrant the conclusion of the trial court that the litigants sustained to each other the relation of landlord and tenant from 1874 to 1896, the period in which McManigal claims his adverse occupancy of the premises ripened into a perfect title. While the greater number of witnesses testified for the defendant upon this point, we are disposed to think that the conflict in the testimony is of so substantial a character that we would not be justified in disturbing the findings made by the able and careful trial judge, who had far better means of determining the weight and value of the evidence than we possess. If McManigal entered upon the land of Ross's tenant and did not afterwards surrender possession, he could not acquire an adverse title under the statute of limitations, unless Ross knew that he was holding adversely. It is an ancient principle of the common law, founded upon considerations of expediency and justice, that a tenant must deal in good faith with his landlord. He is bound to surrender possession of the demised premises at the expiration of the lease, and if he fail to do so, it will be presumed that he continues to hold in the character...
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