Whitford v. Kinzel

• Decision Date: 03 January 1912
• Docket Number: 16,574
• Citation: 133 N.W. 1124,90 Neb. 573
• Parties: LONZO D. WHITFORD, GUARDIAN, APPELLANT, v. HENRY KINZEL ET AL., APPELLEES
• Court: Nebraska Supreme Court

133 N.W. 1124

90 Neb. 573

LONZO D. WHITFORD, GUARDIAN, APPELLANT, v. HENRY KINZEL ET AL., APPELLEES

No. 16,574

Supreme Court of Nebraska

January 3, 1912

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

AFFIRMED.

William V. Allen, William L. Dowling and F. D. Hunker, for appellant.

A. R Oleson, contra.

OPINION

FAWCETT, J.

The controversy in this case is over the east half of the northwest quarter of section 5, township 23, range 5, in Cuming county. David C. and Frances E. Browand were husband and wife. In 1878 they settled upon the west half of the quarter section above described, and resided upon the same until 1885 or 1886. In 1882 David purchased the 80 acres in controversy, and from that time until 1885 or 1886 both eighties were used by him in the support of his family. The major portion of the cultivated land was upon his eighty, the buildings and improvements all being upon the west eighty, which at the time they settled upon it was, and at all times since has been, the property of Mrs. Browand. One of the contentions is that, when David purchased the east eighty and brought it into servitude in the support of his family, it thereby became a part of the homestead and thereafter the homestead right attached to both eighties. In 1885, or the spring of 1886, Mrs. Browand left Nebraska and returned to the former home of both herself and husband in Noble county, Indiana, where on October 18, 1886, she was adjudged insane and a few days later was committed to the hospital for the insane at Indianapolis, Indiana. On October 21, 1891, plaintiff was by the Indiana court appointed guardian of her person and estate, and on March 6, 1909, ancillary letters of guardianship were issued to him by the county court of Cuming county, this state. On May 7, 1906, Mr. Browand conveyed the land in controversy to defendant Kinzel. In July, 1906, Kinzel and his wife conveyed a part thereof to defendant Emley, and on the same day Kinzel and wife and Emley and wife conveyed to defendant Gordon. This suit was instituted to set aside the three deeds above set out, to quiet the title in Mrs. Browand, to award plaintiff possession of the land, and for an accounting of the rents and profits. The trial resulted in findings and a decree adverse to plaintiff and quieting the title to the land in defendant Gordon. Plaintiff appeals.

The main questions argued are: (1) Did the land in controversy purchased by the husband several years after...