La Rue v. Parmele
| Decision Date | 19 April 1905 |
| Citation | 103 N.W. 304,73 Neb. 663 |
| Parties | LA RUE v. PARMELE ET AL. |
| Court | Nebraska Supreme Court |
An incumbrance includes all interest in the land which may subsist in a third person to the diminution of the value of the land, but consistent with the passing of the fee by conveyance; hence an outstanding lease for a period of years is an incumbrance.
Commissioners' Opinion. Appeal from District Court, Cass County; Jessen, Judge.
Action by George La Rue, guardian of William Albin, against Charles C. Parmele and Laurena Ann Carey and others. Judgment for plaintiff, and defendants appeal. Reversed.Jesse L. Root and Samuel M. Chapman, for appellants.
Matthew Gering, for appellee.
This cause is here a second time on appeal. The former opinion in the case was written by AMES, C., and is reported in 98 N. W. 29. A full statement of the pleadings and facts at issue is contained in the former opinion, and this renders a further detailed statement unnecessary. The action was instituted by William Albin, by George La Rue, his guardian, against Charles C. Parmele and Laurena Ann Carey et al. for the purpose of canceling and setting aside a warranty deed executed and delivered to Charles C. Parmele by William Albin and wife to certain lands situated in Cass county, Neb., and also for the purpose of canceling a deed from Charles C. Parmele and wife to Laurena A. Carey, and a mortgage from Laurena A. Carey to Charles C. Parmele. At the first trial in the district court all these conveyances were canceled, but a lien for $850 for the purchase money paid by Charles C. Parmele was decreed against the premises. On appeal the decree of the district court was modified by canceling the lien for purchase money, and it was held that the estate devised to William Albin by the will of his father, Benjamin Albin, in the premises in controversy, was a life estate, without power of alienation or incumbrance. It appeared from the record in the first trial of this cause that in 1899 William Albin, while not under guardianship, had executed a lease for five years on the premises to his brother for the sum of $200 per year. This lease took effect March 1, 1900, and terminated March 1, 1905, and was assigned to defendant Carey by the lessee. All testimony with reference to this lease had been excluded by the trial court at the first hearing, and on a motion for a rehearing filed in the case of Albin et al. v. Parmele (Neb.) 98 N. W. 29, the following additional opinion, reported in 99 N. W. 646, was rendered (Sedgwick, J.): “It being insisted that the defendant Carey was in possession of the premises under the lease, which does not appear to have been adjudicated below, and evidence upon questions affecting the right of possession having been excluded by the trial court, we think that the judgment of this court should not determine that question; and, to remove any doubt or uncertainty in that regard, the judgment heretofore entered in this court is modified so as to remand the cause to the district court, with instructions to determine the right of possession in accordance with the opinion and judgment of this court.” On a reversal of the cause under these directions, the district court held that, under the decree entered in this court, the lease was absolutely void and executed without authority, and canceled the same; and to reverse this finding a second appeal to this court is taken by defendants Parmele and Carey.
It is now insisted by counsel for appellants that the learned judge of the district court has failed to follow the directions under which the cause was remanded. We think that, in a restricted sense, this contention is well founded. In the first...
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