Uppfalt v. Nelson

• Decision Date: 06 January 1886
• Citation: 26 N.W. 362,18 Neb. 533
• Parties: GUST UPPFALT, PLAINTIFF IN ERROR, v. JOHN NELSON, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

26 N.W. 362

18 Neb. 533

GUST UPPFALT, PLAINTIFF IN ERROR, v. JOHN NELSON, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 6, 1886

ERROR to the district court for Cuming county. Tried below before POST, J., sitting for CRAWFORD, J.

AFFIRMED.

Parrish & Lewis and Uriah Bruner, for plaintiff in error.

T. M Franse, for defendant in error.

OPINION

COBB CH. J.

This was an action for the recovery of a tract of land, together with compensation for the use thereof while in the alleged unlawful possession of the defendant. It was such an action as before the code was called an action of ejectment. But many years before the adoption of the code the legislatures of most of the states had abolished the most of the artificial and technical features of the action of ejectment as described by the common law writers; and yet it remained a common law remedy, as distinguished from equitable ones, and since the adoption of the code it remains "the remedy generally made available for the trial of title to land." See note to Chase's Blackstone, p. 733.

The statute of Nebraska, section 626 of the code of civil procedure, provides as follows:

"In an action for the recovery of real property, it shall be sufficient if the plaintiff state in his petition that he has a legal estate therein, and is entitled to the possession thereof, describing the same * * * and that the defendant unlawfully keeps him out of possession. * * *"

Section 627 also provides that, "It shall be sufficient in such action if the defendant in his answer deny, generally, the title alleged in the petition, or that he withholds possession, as the case may be; but if he deny the title of the plaintiff possession by the defendant shall be taken as admitted. * * *"

Now I understand the meaning of these two sections, taken together to be that this action is based primarily upon the legal title on the part of the plaintiff, but also depending upon his having also the right of immediate possession. The letter of the statute would seem to confine the defendant to a legal defense in so far as he may seek to dispute the legal title of the plaintiff; but after admitting the legal title of the plaintiff he may doubtless plead, and upon the trial prove any fact or facts which upon recognized principles of equity would defeat the claim of the plaintiff to the immediate possession of the land. It will be seen, upon an examination of the section of the code...