Trowbridge v. Donner
| Decision Date | 19 January 1950 |
| Docket Number | No. 32678,32678 |
| Citation | 152 Neb. 206,40 N.W.2d 655 |
| Parties | TROWBRIDGE v. DONNER et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A lease by one tenant in common of an entire estate is void as to the interests of his cotenants, if such lease was executed without their knowledge, consent, authority, or ratification.
2. While such a lease may be upheld under certain conditions in a contest between the lessor and lessee, yet it is generally the rule that such a lease may be avoided by any of the tenants in common who did not execute it or subsequently ratify its execution.
3. Where a lease of the entire estate is executed by one tenant in common and such lease is repudiated by cotenants, the lessee therein is held not to be a trespasser but a tenant by sufferance of the estate occupied under such lease.
4. In other words, the lessee of one tenant in common stands in the shoes of his lessor, and has no other or greater rights in the common property than that attaching to his lessor.
5. The object of a partition suit is to assign property, the fee simple title to which is held by two or more persons as joint tenants, or tenants in common, to them in severalty.
6. In partition cases, section 25-2182, R.S.1943, gives a trial court the power to direct the referee to allot particular portions of the land to particular individuals, and unless so allotted, the shares may be drawn by lot, as provided by section 25-21, 102, R.S.1943.
7. As between a partition in kind or sale of land for division, courts will favor partition in kind, since it does not disturb the existing form of inheritance or compel a person to sell his property against his will.
8. Generally, the burden is on those who seek a sale of the property in lieu of partition in kind, to establish by a preponderance of the evidence the existence of a statutory ground for such sale.
9. A sale in partition cannot be decreed merely to advance the interests of one of the owners, but before ordering a sale, the court must judicially ascertain that the interests of all will be promoted thereby.
10. The generally accepted test of whether a partition in kind would result in great prejudice to the owners is whether the value of the share of each in case of such a partition would be materially less than his share of the money equivalent that could probably be obtained for the whole.
11. The effect of section 25-2181, R.S.1943, and section 25-2183, R.S.Supp., 1949, is to make uncertain whether the property should be partitioned in kind or sold and the proceeds distributed, until a judicial determination of that issue is made by the court.
12. It is the statutory duty of the referee in the first instance to report to the court whether or not it appears that partition in kind can be made without great prejudice to the owners, but when such report is filed it becomes the duty of the trial court to hear and judicially determine that issue.
13. Generally, an adjudication by the trial court that the conditions are such as to require a sale should not be treated lightly, yet if it appears that the property has been decreed to be sold without sufficient cause, it is the duty of this court upon appeal therefrom to reverse such judgment.
14. Section 25-1925, R.S.1943, requires this court in equity cases to retry the issue or issues of fact involved in the finding or findings of fact complained of upon the evidence preserved in the bill of exceptions, and upon trial de novo of such question or questions of fact, reach an independent conclusion as to what finding or findings are required under the pleadings and all the evidence, without reference to the conclusion reached in the district court or the fact that there may be some evidence in support thereof.
15. This court, in reaching its own conclusions in such cases, will consider the fact, where the evidence is in irreconcilable conflict on material issues of fact, that the trial court saw the witnesses and had opportunity to observe their manner of testifying, but nevertheless, it is the duty of this court, if the party upon whom the burden is imposed has failed to establish his case by a preponderance of the evidence, to so find, and reverse the judgment.
Elven A. Butterfield, Neligh, Russell Bartels, Wayne, for appellants.
Ralph M. Kryger, Neligh, Ralph S. Kryger, Neligh, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This action was brought to partition a 120-acre tract of unimproved farm land. Admittedly, plaintiff and her sister, defendant Jennie Donner, each owned an undivided one-half interest therein, as tenants in common. Defendants Forrest Trowbridge and Ernest Donner, who both defaulted, were their respective husbands and interested only as such. Defendants Robert L. Edwards and John Donner, a son of defendant Jennie Donner, answered, claiming an interest as tenants of the entire tract under an oral lease expiring March 1, 1949, and a written lease from March 1, 1949, to March 1, 1950.
The right to partition was not questioned, but the method was the primary issue presented to the trial court. In that regard, plaintiff alleged substantially in her petition that it was impossible to partition in kind without great prejudice to the owners, and she prayed for partition in kind or sale of the property with division of the proceeds. On the other hand, defendant Jennie Donner answered, alleging substantially that the property could and should be partitioned in kind without great prejudice to the owners, proposed two alternate methods of doing so in equal 60-acre tracts, and offered to give plaintiff her choice thereof as so divided. She prayed for partition in kind and denial of sale.
After hearing, a judgment was entered, confirming the shares and interests of plaintiff and defendant Jennie Donner, together with the respective contingent interests of their husbands. That decree then ordered partition, appointed a referee, directed him to report to the court, and continued the issues involving the alleged leasehold interests.
The referee qualified, and thereafter, without personal inspection of the premises and without making any independent investigation with regard to whether or not there were variable elements of evaluation as between division and sale, reported substantially that the property could not be partitioned in kind without great prejudice to the owners, and recommended sale as one tract, with division of the proceeds.
A hearing was then had upon the referee's report, plaintiff's oral motion to confirm the same, and defendants' oral objections thereto, whereat evidence was adduced at length by all the parties. Thereafter, a decree was entered, finding that partition in kind could not be made without great prejudice to the owners, finding that the alleged leasehold agreements were made with defendant Jennie Donner only, without the knowledge, consent, or authority of plaintiff, and thus in no manner affected plaintiff's interest but only the interest of Jennie Donner. The order confirmed the referee's report and ordered the property sold, free from any encumbrance, thus requiring defendants John Donner and Robert L. Edwards to look to defendant Jennie Donner for any damages that may have been sustained by reason of the alleged leasehold agreements. The referee was directed to sell the property to the highest bidder for cash as one tract, or in two separate alternate 60-acre tracts, or in any other manner that prospective buyers might desire. Referee's bond was fixed, approved, and filed. Thereafter, defendants' motion for new trial was overruled, and supersedeas properly denied, upon the ground that the decree ordering partition and sale was not appealable as a final order until partition was effected and confirmed. Peterson v. Damoude, 95 Neb. 469, 145 N.W. 847.
Thereafter, notice of sale was published, and sale was had, whereat the property was sold to plaintiff as one tract for $14,000, and report of such sale was filed by the referee, recommending confirmation. Objections thereto were filed by defendants upon the grounds that: (1) The property was not sold to the highest bidder; (2) the sale was not fairly conducted; (3) the premises were not sold subject to the 1949 lease; and (4) the property should have been partitioned in kind.
Hearing was thereafter had upon the referee's report of sale, plaintiff's oral motion to confirm, and defendants' objections, at which time further evidence was adduced. Thereupon, the trial court entered an order in effect overruling defendants' objections, confirming the sale, and ordering the referee to convey the property to plaintiff upon compliance with her bid.
Defendants filed a comprehensive motion for new trial, which was overruled, and they appealed, assigning substantially that the finding, orders, and judgments of the trial court were not sustained by the evidence and were contrary to law, the effect of which was to particularly contend that the trial court erred in finding and adjudging, under the facts and circumstances presented, that the property could not be partitioned in kind without great prejudice to the owners, and erred in disposing of the alleged leasehold interests. We conclude that the property should have been partitioned in kind, and that the alleged leasehold interests were of no force and effect upon plaintiff's interest.
With regard to the leasehold interests, admittedly John Donner was originally a tenant of the entire estate under an oral lease for one year, made with defendant Jennie Donner and subsequently ratified by plaintiff. By holding over, he became a tenant from year to year, which tenancy expired March 1, 1949. Admittedly, also, by timely notice and the bringing of this action, that tenancy was terminated as of March 1, 1949.
The record discloses that if John Donner and Robert L. Edwards were partners, as...
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