Snowden v. Tyler

• Decision Date: 09 February 1887
• Citation: 31 N.W. 661,21 Neb. 199
• Parties: SNOWDEN AND ANOTHER v. TYLER AND OTHERS.
• Court: Nebraska Supreme Court

21 Neb. 199

31 N.W. 661

SNOWDEN AND ANOTHER

v.TYLER AND OTHERS.

Supreme Court of Nebraska.

February 9, 1887.

Syllabus by the Court.

The remedy for recovery of real estate by one claiming the legal title thereto, against one in possession claiming an estate therein, is an action of ejectment, in which the facts may be submitted to a jury; and an action to quiet title, if properly objected to, will not lie.

Where a party out of possession of real estate brings an action to quiet title, and the defendant answers alleging a cloud upon his title caused by the plaintiffs' deed, and praying for a decree canceling the same, the court will have jurisdiction to determine the title of the respective parties. A defect which appears on the face of the petition should be taken advantage of by demurrer.

A quitclaim deed of real estate, while affording cause of suspicion, may, where it appears in a chain of title on the proper records of the county, be sufficient to justify a bona fide purchaser for valuable consideration in relying upon it as a valid conveyance. It is a bona fide purchaser for valuable consideration, and not a donee, who is protected.

One Shirk, in 1862, conveyed certain real estate to one Snowden, who failed to record his deed. In 1866, Snowden died, and in 1870 one Poe sought to purchase the land of Shirk, but was informed that it had been sold and conveyed to Snowden. Poe then applied to the adult heirs, and administrator of the estate of Snowden, and the guardian of the minor heirs, and was informed that the deed in question had been lost or destroyed. Poe thereupon purchased the land, taking deeds from the adult heirs, and with their consent a quitclaim deed from Skirk, which last deed he placed on record. Held, that a bona fide purchaser for a valuable consideration from a grantee of Poe took the title as against an heir who was a minor at the time the deed from Shirk was obtained, but that a mere donee from Poe was not so entitled.

Where heirs come into a court of equity to claim an interest in lands which have not been conveyed, but which have been held adversely by other parties for a long period, they must do equity by paying a just proportion of the taxes and the interest due thereon.

A purchaser pendente lite from a purchaser who bought without notice, and for a valuable consideration, may protect himself under the first purchaser.

Appeal from Otoe county.

S. H. Calhoun, for plaintiffs.

E. F. Warren, for defendants.

MAXWELL, C. J.

The plaintiffs brought an action against the defendants in the district court of Otoe county, and alleged in their petition “that in January, 1867, one Elijah Snowden, the father of the said plaintiffs, died at his residence in Indiana, a widower, and seized of the following described real estate situate in Otoe county, Nebraska, to-wit: Section twenty-three, (23,) township seven, (7,) range eleven (11) E., containing 640 acres. That said Elijah Snowden, at his death, left the following children: Adaline, now the wife of Samuel J. Leedy; Catherine, now the wife of Sylvester Snodgrass; Margaret, now the wife of James S. Ford; Sally, now the wife of Joseph Leedy; William T. Snowden; and the plaintiffs. That the above-named were all his children surviving him, and were and are his heirs at law. That the said Elijah Snowden derived his title to said real estate from one Elbert H. Shirk by warranty deed dated July 25, 1862. That said Shirk derived his title from one Barrett Blue by warranty deed dated December 11, 1860. That said Blue derived his title thereto from the United States under an entry made June 21, 1860, and a patent dated October 9, 1860. That said Elijah Snowden left no other estate in Nebraska. That all the balance was exhausted in the payment of his debts, and expenses of settling his estate. That it was long doubtful whether or not said described lands in Nebraska would have to be sold in order to pay his debts, but the same were finally settled out of his other property. This estate was finally settled in the proper tribunals in the state of Indiana in March, 1882. That the above-named children of said Elijah inherited said land as his sole surviving heirs at law,--became joint tenants thereof. That, since said joint tenancy began, said Sally Leedy has conveyed all her interest therein to her brother David L. Snowden, who now holds and owns two-sevenths thereof. That Adaline Leedy, Catherine Snodgrass, Margaret Ford, and their respective husbands, and William T. Snowden, have each declined to become plaintiffs, and are therefore made defendants. That Ella M. Tyler, formerly Ella M. Poe, and C. L. Tyler, her husband, and E. E. Lyle and Joseph Mastalka and Herman Floerke and Connoy Hanks have set up a claim or claims to said tract of land, and pretend to be owners thereof. That said pretended claim or claims are based upon a pretended quitclaim deed from said Elbert H. Shirk to one Adam Poe. That said quitclaim deed conveyed no right in and to said tract of land, nor to any one claiming by, through, or under him, as do the defendants. That said pretended quitclaim deed was of date long subsequent to the warranty deed from Shirk to said Elijah Snowden, and that the same was and is a gross fraud upon the rights of said heirs at law in and to said land, and is a cloud upon the title of said heirs in and to the same. That the said defendants pretend to have made some division among themselves of their grantors of said tract of land, and to hold separate and distinct tracts, based upon said pretended quitclaim deed from Shirk to Poe, and that by reason thereof the real owners of the land are and will be unable to obtain for said land, or any portion or portions thereof, the full market value therefor, and will be inconvenienced and hindered in the exercise of their legal rights thereto. Wherefore said plaintiffs pray that the said pretended quitclaim deed from Shirk to Adam Poe, and all subsequent deeds from said Poe, or any of his grantees, either remote or immediate, may be declared to be a cloud or clouds upon the title of the heirs of said Elijah Snowden, deceased; that the same may be set aside and held for naught, and the said defendants Tyler, Lyle, Mastalka, Floerke, and Hanks may be declared to have held held said property as trustees of and for said heirs of Elijah Snowden, deceased; that an accounting may be had; and that the proper parties may be put into the undisturbed and uninterrupted possession and sole control of the same; and for general relief in equity.”

Answer of Connoy Hanks. Answer filed in said court October 11, 1884:

“(1) Denies each and every allegation not expressly admitted hereinafter.

(2) Alleges that he is the owner in fee-simple, and in the open, notorious, and undisturbed possession, of the north-east quarter of section 23, T. 7, R. 11 E., in said county, being a portion of the same premises described in amended petition; that his said title thereto is derived through and from one Elbert H. Shirk mentioned in the petition, and is adverse, hostile, and independent of, and paramount to, the pretended title of said plaintiffs, and those under whom they claim, as set out in the petition; that this defendant, and those under whom he claims, have been in the quiet and peaceable possession of said above-described quarter section of land since September 19, 1870, claiming to own the same adversely to all the world by paramount title; that, under their said title, defendant, and those under whom he claims, have owned, occupied, and enjoyed the same, and every part thereof, for more than ten years next preceding the commencement of this action. Wherefore the defendant pleads the bar of the statute of limitations.

(3) Alleges, further, that one Lefford H. Purcell was his grantor by deed dated December 23, 1882; said deed filed for record in said Otoe county, January 6, 1883; that defendant paid said Purcell therefor $700 cash, and entered into possession; that, at the date of said purchase, defendant was entirely ignorant of any claims or demands of said plaintiffs in or to said quarter section; that said Purcell purchased the same, October 25, 1881, of one Charles F. Weibke, for the sum of $1,200; that Weibke purchased the same of one George L. Bittinger, June 21, 1875, for $1,600; that said Bittinger purchased the same, including other lands, of one G. Z. Rayhouser, July 14, 187--, for sum of $2,600; that said Rayhouser purchased the same, including other lands, August 4, 1873, of L. F. D'Gette and E. F. Warren for $2,800; that said D'Gette and said Warren purchased the same from Adam W. Poe, December 1, 1870, for $500; that each of the several deeds aforementioned were recorded in the office of clerk of Otoe county immediately after their execution and delivery; that said several owners, to-wit, Purcell, Weibke, Bittinger, and Rayhouser, were each an innocent purchaser of said premises for value, without any knowledge or information of any claim or interest therein on the part of said plaintiffs, or anybody else adverse to them. Wherefore defendant pleads and insists that he and his grantors were and are bona fide purchasers for value, without knowledge or information of the alleged claims of the said plaintiffs, and he is entitled to protection therein as innocent purchaser. That said Poe claimed to be adverse, and was a purchaser of said lands for value from said Shirk, by deed dated September 19, 1870, recorded in Otoe county clerk's office September 23, 1870; that the alleged deed from said Shirk to said Elijah Snowden, mentioned in the petition as executed July 25, 1862, was not filed for record in said clerk's office before July 14, 1879; that neither defendant, nor either of his grantors since said Poe, had any knowledge, information, or suspicion of said alleged deed from Shirk to Snowden until a time after it had been recorded, as aforesaid, in 1879; that defendant was advised by counsel learned in the law...