Van Paten v. O'Brien
| Decision Date | 24 January 1911 |
| Docket Number | No. 16,158.,16,158. |
| Citation | 88 Neb. 382,129 N.W. 540 |
| Parties | VAN PATEN v. O'BRIEN ET AL. (BUCHANAN, INTERVENER). |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In a suit to quiet title, a defendant in possession may, without proving title in himself, defeat the action by showing that plaintiff has no title to or interest in the land.
Where plaintiff is defeated in a suit to quiet title, and defendants rely alone on adverse possession for a defense, and pray for the cancellation of an outlawed mortgage which an intervener seeks without avail to foreclose, defendants are not entitled to affirmative relief, if their proof in any material respect fails to show that they have been in the actual, continuous, open, notorious, exclusive, adverse possessionof the realty for 10 years, claiming to be owners.
Where both plaintiff and defendant are defeated in a suit to quiet title, an intervener seeking to foreclose an outlawed mortgage held not entitled to a foreclosure; the owner of the equity of redemption not being a party to the action.
Appeal from District Court, Dundy County; Orr, Judge.
Action by Watie Van Paten against Robert O'Brien and others. From the judgment, plaintiff and W. F. Buchanan, intervener, appeal. Reversed in part, and affirmed in part.
Ralph D. Brown, for appellant Van Paten.
J. W. James, for appellant Buchanan.
P. W. Scott, for appellee O'Brien.
The subject of litigation is a quarter section of land in Dundy county. Plaintiff asserts ownership, relies on a quitclaim deed, and prays for the quieting of her title, for the cancellation of an outlawed mortgage for $750, and for rents and profits amounting to $400. Defendants claim the land by adverse possession, and ask the court to quiet their title, to cancel the outlawed mortgage, and to dismiss plaintiff's petition. Intervener bought the mortgage for $50, and prays for a foreclosure, averring that plaintiff acquired the legal title to the mortgaged premises by means of her quitclaim deed; that, as part consideration for the conveyance, she assumed the mortgage, thereby estopping herself from invoking the statute of limitations to defeat her agreement to pay the debt secured; that defendants have no interest in the land. In substance the findings of the trial court are: Plaintiff has no title to or interest in the land. The mortgage is barred by the statute of limitations. The land belongs to defendants by adverse possession, and their title is clouded by intervener's mortgage. On these findings plaintiff's petition was dismissed. The title to the land was quieted in defendants. Foreclosure was denied and the mortgage canceled. Plaintiff and intervener appeal.
1. The first question presented is the correctness of the holding that plaintiff has no title. By record evidence she showed: The United States issued a patent to Joseph Dufak May 25, 1891. The patentee and his wife conveyed the land to Frank H. Kaylor by warranty deed January 29, 1894. Plaintiff procured a quitclaim deed from Kaylor December 24, 1905. It is now argued that, the record evidence thus showing title in plaintiff is unquestioned, such title is good as against defendants, and that consequently she has made a prima facie case entitling her to relief, since, as she contends, she is not required to show a title good as against all the world. The record evidence, however, is not the only proof adduced by plaintiff in support of her title. After defendants and intervener had rested, plaintiff in rebuttal called as witnesses her husband and I. R. Darnell. It is shown without contradiction that both were her agents in procuring the quitclaim deed. On direct examination they testified to conversations relating to plaintiff's purchase and to the consideration. Van Paten said the expressed consideration was $1, and that the consideration actually paid was $50. Both stated nothing was said about the mortgage. On cross-examination as to further conversations, it was shown by both of these witnesses that, when thus acting as agents for plaintiff, they were told by Kaylor he had deeded the land either to “Bob Doty or the old gentleman.” Kaylor's deposition was admitted in evidence, and it tends to prove: By warranty deed Kaylor for a valuable consideration conveyed the land to J. R. Doty before executing the quitclaim deed. The second deed was made for the consideration paid for the first with the understanding on part of Kaylor that he was making the former title good. One dollar was tendered to him at the time, but it was rejected. After acquiring title J. R. Doty died, leaving children. Doty was not a relative of plaintiff. The proofs further show that plaintiff's claim to title rests alone on her quitclaim deed, and that she was never in possession of the premises.
Plaintiff contends her title is not defeated by oral proof showing her agents had been told by her grantor that he had previously deeded the land either to “Bob Doty or the old gentleman,” and that such testimony is incompetent. This proof was properly brought out on cross-examination of plaintiff's witnesses who had testified on direct examination to the conversations leading up to the transfer and to the consideration paid. She was bound by the knowledge of her agents. Kaylor's statement that he had previously deeded the land to another was sufficient notice to put her on inquiry. McParland v. Peters, 88 Neb. ___, 128 N. W. 523. Plaintiff having gone into the question of consideration and into the conversations leading up to the execution of the quitclaim deed, the trial court properly considered the testimony of Kaylor on the same subjects. It shows that prior to the execution of the quitclaim deed he had conveyed the land to J. R. Doty by warranty deed, and that he had no title whatever to convey to plaintiff....
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