Wells v. Steckelberg

• Decision Date: 04 November 1897
• Citation: 52 Neb. 597,72 N.W. 865
• Parties: WELLS v. STECKELBERG.
• Court: Nebraska Supreme Court

52 Neb. 597

72 N.W. 865

WELLS

v.STECKELBERG.

Supreme Court of Nebraska.

Nov. 4, 1897.

Syllabus by the Court.

1. One who, in a representative capacity, assumes to sell and convey to another the entire estate in land, is estopped, as against the purchaser, from asserting an estate in his own right in the same land; and this although the first sale and deed were void.

2. A mother died intestate, seised of land in which her husband took an estate by the curtesy, and her infant son the remainder in fee. The father applied to the district court, falsely alleging that he had been appointed guardian of the son, and obtained license to sell the land. In the petition he averred that the land was the son's, and alleged other facts from which an estate in fee in possession was inferable. He sold the land under the license, and in the deed recited that he was guardian, and recited all the proceedings in such manner as to make them appear valid. The deed purported to convey the whole estate, and also the right of “the party of the first part,” to wit, the father. Thereafter the father executed to the son a deed of quitclaim, and the son, on reaching his majority and during the father's lifetime, brought ejectment against the purchaser at guardian's sale, claiming that such sale was void. Held: (1) That the father was estopped from setting up his life estate against the purchaser; (2) that the estoppel operated equally against his grantee by quitclaim; (3) that, ejectment being a possessory action, the son's right of action must be traced through the deed to the current life estate, and not as heir to the remainder, and that the action must therefore fail.

On rehearing. Affirmed.

For former opinion, see 70 N. W. 242.

IRVINE, C.

This case is before us on rehearing. The former opinion (50 Neb. 670, 70 N. W. 242) contains a statement of the facts, which, with one or two incidental additions, is sufficient for the purposes of the present inquiry. The former decision was based on the proposition that inasmuch as plaintiff's father, John B. Wells, had never been appointed guardian of the plaintiff, there was no jurisdiction in the district court of Platte county to grant him a license to sell the infant's land. Our attention is now for the first time called to certain facts which render a re-examination of that question at present unnecessary. On the death of plaintiff's mother, the law did not cast the descent immediately in plaintiff. He then took an estate in remainder, his father acquiring an estate for life, as tenant by the curtesy. Ejectment is a possessory action. In order to recover, the plaintiff must plead, and under the general issue must prove, not only a legal estate in himself, but a present right of possession. Unless both facts are established, the defendant prevails. Code Civ. Proc. §§ 626, 627; Dale v. Hunneman, 12 Neb. 221, 10 N. W. 711;Staley v. Housel, 35 Neb. 160, 52 N. W. 888;Wanser v. Lucas, 44 Neb. 759, 62 N. W. 1108;George v. McCullough, 48 Neb. 680, 67 N. W. 758. It is therefore apparent that plaintiff could not prevail in this case, although the guardian's sale were absolutely void, unless either the father's life estate had determined or had in some way passed to the plaintiff. It had not determined by the death of the life tenant; but, in order to show that it had passed to the plaintiff, there was introduced in evidence a deed of quitclaim from John B. Wells to Joseph S. Wells, bearing date August 31, 1891. This operated merely to pass such estate as remained in the father at that time. Had he, then, any title or right which could be asserted against the defendant?

Recurring now to the proceedings and sale through which the defendant claims title, it is found that, in the petition for license to sell, John B. Wells not only describes himself as the guardian of Joseph S. Wells, duly appointed by the probate court of Platte county,but he alleges and swears that Joseph S. Wells is the owner of the land, together with other land likewise inherited from the mother. Nothing is said about there being a particular estate in himself, but, on the contrary, there are allegations concerning rents and their application, from which it is directly inferable that the minor's estate was one in fee simple in possession. The facts from which John B. Wells' estate by the curtesy arose are not alleged, nor does the fact appear that the ostensible guardian was also the father of the minor. There was nothing in the record to notify defendant that there was a life estate outstanding. On the other hand, the conduct of the tenant of that estate was such as to induce the belief that there was not. On this petition a license was obtained, directing the sale of the land, not of an expectancy therein. The report showed that the land was sold. Finally, John B. Wells conveyed it to def...