Severson v. Mckenzie

• Decision Date: 25 March 1932
• Docket Number: 28233
• Citation: 241 N.W. 774,122 Neb. 827
• Parties: JOHN SEVERSON, APPELLEE, v. MARGARET MCKENZIE ET AL., APPELLEES: WILLIAM MCKENZIE ET AL., APPELLANTS
• Court: Nebraska Supreme Court

241 N.W. 774

122 Neb. 827

JOHN SEVERSON, APPELLEE, v. MARGARET MCKENZIE ET AL., APPELLEES:

WILLIAM MCKENZIE ET AL., APPELLANTS

No. 28233

Supreme Court of Nebraska

March 25, 1932

APPEAL from the district court for Cuming county: DE WITT C. CHASE JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. The general rule is that the possession of real property by one cotenant is the possession of all.

2. Before ouster of a cotenant arises there must be some notice or knowledge of acts causing such ouster.

3. The notice or knowledge out of which ouster of a cotenant arises may sometimes be inferred from acts or circumstances attending adverse possession, which are open, notorious and unequivocal in their character and import.

4. " Where one tenant in common enters upon the whole estate, improves it, takes the profits, pays all the taxes, makes it his home, and claims the whole for more than the period of the statute of limitations, an actual ouster should be presumed, although not otherwise proved." Lund v. Nelson, 89 Neb. 449, 131 N.W. 919.

5. " Independently of any limitation for the guidance of courts of law, equity may, in the exercise of its own inherent powers, refuse relief where it is sought after undue and unexplained delay, and when injustice would be done in the particular case by granting the relief asked." Abraham v. Ordway, 158 U.S. 416, 15 S.Ct. 894, 39 L.Ed. 1036.

6. " Courts of equity have inherent power to refuse relief after undue and inexcusable delay independent of the statute of limitations." Hawley v. Von Lanken, 75 Neb. 597, 106 N.W. 456.

Appeal from District Court, Cuming County; Chase, Judge.

Suit by John Severson against Margaret McKenzie and others, wherein William McKenzie and others filed a cross-petition. From the decree rendered, Helen M. Oleson and other cross-petitioners appeal.

Affirmed.

A. R. Oleson, for appellants.

Zacek & Nicholson, contra.

Heard before GOSS, C. J., DEAN, GOOD, DAY and PAINE, JJ., and LANDIS and RAPER, District Judges.

OPINION

GOSS, C. J.

This is a suit to quiet title to two town lots in Wisner, bought by John Severson on January 8, 1929, through partition proceedings. From a decree for plaintiff, Helen M. Oleson and other cross-petitioners appealed. There is little dispute over the important facts. Many of them are stipulated. The partition proceedings were brought by the heirs of James C. McKenzie of Wisner, who had been in actual possession of the lots for many years prior to his death, intestate, on May 13, 1928. His estate, probated in Cuming county, was closed November 20, 1928, and his heirs brought the partition suit January 8, 1929.

James C. McKenzie, Kenneth J. McKenzie and Donald McKenzie were brothers. James lived at Wisner, Nebraska, Kenneth lived at Onawa, Iowa, and Donald lived in Canada. In 1894, while on a visit with his brother James, Kenneth J. McKenzie acquired the property in controversy. Kenneth J. McKenzie died testate on March 18, 1896. On May 19, 1896, his will was admitted to probate in Iowa. On July 14, 1896, an authenticated copy was filed for probate in the county court of Cuming county, Nebraska, for ancillary administration here, and was subsequently duly admitted to probate. On August 7, 1896, letters testamentary were issued to James C. McKenzie, as executor; no further proceedings were had in said estate after that date. By said will of Kenneth J. McKenzie the property in controversy was devised to James C. McKenzie and Donald McKenzie. It does not appear that the estate owed any debts. It would seem that the purpose of probating the will here was to show its devise of the Cuming county property, being the two Wisner lots.

After the death of Kenneth J. McKenzie and in 1896 or 1897, James C. McKenzie moved a barn upon the lots, fenced them in and continued to use them as a barnyard until his death. He put sidewalks in front of the property, paid all taxes on the lots from 1897 to his death, including $ 230 paving assessments, was in exclusive possession, and was reputed to be the sole owner. Neither Donald McKenzie nor any one claiming under him had ever made any claim to the property, and James C. McKenzie was testified to have stated that he was the owner.

All of the appellants except Helen M. Oleson claim an undivided one-half interest in the lots as heirs of Donald McKenzie, who died in Canada, August 2, 1897. Helen M. Oleson claims the like interest under a deed from the administrator with the will annexed of the estate of Donald McKenzie. All appellants admit that plaintiff is entitled to an undivided one-half interest in the lots but no more. The Donald McKenzie will was admitted to probate in Cuming county on October 13, 1930, by use of an authenticated copy from the Monona, Iowa, probate proceedings. It may be said generally, as to the terms of the will and for the purposes of this suit, that, if given effect here, the will served as a basis for the assertion of the interests set up by appellants.

The district court expressly held that plaintiff and his predecessors had title by adverse possession, with all of the elements operative in relation thereto, since 1896 or 1897. Appellants challenge that holding on the particular ground that, when James C. McKenzie took possession of the lots, he did so for himself and, as executor, for his brother Donald, both of whom took the real estate under the will of Kenneth, as cotenants. They rely on the general proposition so well stated in Walter v. Walter, 117 Neb. 671, 222 N.W. 49, that possession by a cotenant is presumed to be friendly and, to become adverse, requires notice that the entire estate is claimed in hostility to cotenants. Plaintiff, on the other hand, claims there was no occasion for James C. McKenzie, as executor, to take possession of these unimproved lots, as there were no rents and profits to collect and no estate debts to pay. Title vested in James C. and Donald, as devisees under the will, subject to claims against the estate. The executor was not required to take actual possession in the circumstances and unless ordered by the court. Tunnicliff v. Fox, 68 Neb. 811, 94 N.W. 1032; Lewon v. Heath, 53 Neb. 707, 74 N.W. 274. We conclude from all the circumstances that, when James C. McKenzie took possession of the lots, he did so in his own right as a devisee under his brother's will and not as executor.

The general rule is that the possession of one cotenant is the possession of all. So James C. McKenzie's possession was also that of Donald McKenzie,...