Weddingfeld v. Weddingfeld

• Decision Date: 27 February 1923
• Docket Number: 22243
• Citation: 192 N.W. 227,109 Neb. 729
• Parties: ELLA WEDDINGFELD, APPELLANT, v. CAROLINE WEDDINGFELD ET AL., APPELLEES
• Court: Nebraska Supreme Court

192 N.W. 227

109 Neb. 729

ELLA WEDDINGFELD, APPELLANT, v. CAROLINE WEDDINGFELD ET AL., APPELLEES

No. 22243

Supreme Court of Nebraska

February 27, 1923

APPEAL from the district court for Dixon county: GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

Kingsbury & Hendrickson, for appellant.

W. D McCarthy, contra.

Heard before MORRISSEY, C. J., LETTON, DEAN and GOOD, JJ., RAPER District Judge.

OPINION

MORRISSEY, C. J.

One Weddingfeld died seised of 200 acres of land in Dixon county, Nebraska. Under the provisions of his will, which was duly probated, his widow, Caroline Weddingfeld, one of the defendants in the action, became vested with a life estate in all of the land. Plaintiff and the defendants Ella Virginia Weddingfeld and Albert Weddingfeld, minors, are the joint owners or tenants in common of the remainder. While the owner of the life estate was living and in possession of the property, plaintiff instituted this suit, and by her petition prayed partition of the real estate. The trial court sustained a general demurrer to the petition and dismissed plaintiff's cause of action. The question presented on this appeal is: Can partition be had over the objection of the holder of the life estate in possession during the continuance of the life estate?

"The general rule which prevails with few exceptions unless it has been changed by statute is that a joint tenant or tenant in common will not be permitted to maintain a suit for partition unless he has an estate in possession, namely, such an estate as entitles him to enjoy the present possession of the property and receive the rents and profits thereof as one of the joint tenants or cotenants thereof." 15 Ency. Pl. & Pr. p. 784. See Brown v. Brown, 67 W.Va. 251, 28 L.R.A. n. s. 125, 67 S.E. 596, and note; Striker v. Mott, 2 Paige Ch. (N.Y.) 387; Eberle v. Gaier, 89 Ohio St. 118, 105 N.E. 282; Alexander v. Alexander, 26 Neb. 68, 41 N.W. 1065.

It will be seen that an essential element requisite to the maintenance of the action is the possession, actual or constructive, or the immediate right to such possession of the lands sought to be partitioned. The proceeding operates upon the possession and enables each of the owners to take and enjoy his share of the common or joint estate. However, it is argued by plaintiff's attorneys that this action may be maintained by virtue of the provision of section 9238, Comp. St. 1922, which provides:

"When the object of the action is to effect the partition of real property among several joint owners, the petition must describe the property, and the several interests and estates of the several joint owners thereof, if known. All tenants in common, or joint tenants of any estate in land may be compelled to make or suffer partition of such estate or estates in the manner hereinafter prescribed."

Counsel point out that, in this section, "nothing whatever is said about possession or the right of possession." And they argue that because of the absence of a reference to possession or the right of possession the legislature intended to say that partition might be had although the parties seeking the relief had neither the possession nor the right thereto. A reading of the statute, however discloses that it provides for partition only among "tenants in common or joint tenants." Before it can be invoked to compel the holder of the life estate to submit to partition,...