Wilcox v. Halligan

• Decision Date: 26 June 1942
• Docket Number: 31271.
• Citation: 4 N.W.2d 750,141 Neb. 643
• Parties: WILCOX v. HALLIGAN et al.
• Court: Nebraska Supreme Court

4 N.W.2d 750

141 Neb. 643

WILCOX v. HALLIGAN et al.

No. 31271.

Supreme Court of Nebraska

June 26, 1942

Syllabus by the Court.

1. "Where a cause is fairly within the law authorizing a partition, the right to partition is imperative and absolutely binding upon courts of equity. In such a case the right of partition is a matter of right and not of mere grace." Oliver v. Lansing, 50 Neb. 828, 70 N.W 369.

2. "One of several tenants in common has an absolute right to a partition of their real estate, in absence of an agreement or other impediment to the contrary." Windle v. Kelly, 135 Neb. 143, 280 N.W. 445.

3. "Where partition proceedings are amicable and for the benefit of all the parties in interest, the court may allow a reasonable attorney's fee to be paid by the parties in proportion to their interest in the property involved." Mabry v. Mudd, 132 Neb. 610, 272 N.W 574.

4. Questions in no manner involving the right to partition real estate between tenants in common as provided by law, but merely involving matters of procedure relating to the purchaser at a partition sale, do not deprive the partition proceeding of its amicable character, which, under the issues determined by the pleadings filed therein, it otherwise possesses.

5. Under the facts in this case, the taxing of costs was within the sound discretion of the trial court, and, no abuse of discretion being shown, will not be set aside in this proceeding.

Halligan McIntosh & Halligan, of North Platte, for appellants.

Shuman & Overcash, of North Platte, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

EBERLY Justice.

This is an appeal from an award of attorneys' fees to Shuman & Overcash, attorneys at law, and also from an order assessing the costs of the second sale had in a partition proceeding carried on under sections 20-2170 to 20-2199 and 20-21,100 to 20-21,111, Comp.St.1929.

As to the first contention of the appellants, it is, substantially, that "attorneys' fees allowable under the statutes in partition actions for plaintiff's counsel are those in amicable proceedings," and that within this principle the attorneys' services performed by plaintiff's attorneys were not performed in an "amicable proceeding."

The parties to the action were Wesley T. Wilcox, plaintiff, and Victor H. Halligan, Louise Halligan, his wife, Victor H. Halligan, trustee of the estate of John J. Halligan, deceased, Carrie S. Halligan, Kathleen D. Halligan and Nancy Jane Halligan, a minor, defendants. The defendants had succeeded, upon the death of John J. Halligan, to all the title and interests possessed by the deceased at the time of his death.

The appellants' brief describes the property interests involved in the following terms: "In the property involved in this action at the time of J. J. Halligan's death, Wilcox and Halligan (deceased), each had a one-half interest, with the exception of the Rose place. At that time there was a mortgage on the north quarter of the Rose place that Wilcox and Halligan had sold to Rose. The mortgage was for $4000, but no interest had been collected for six years, and no rent had been collected from Rose for three years on the Hughes quarter which Rose rented. On the pasture south of Hershey, no rent had been collected for a couple of years. The Scottsbluff land was a year behind in rent. Mr. Rose came in and gave a mortgage upon the whole half section for the amount then due. On the south quarter was a mortgage to the Lincoln Joint Stock Land Bank, and our mortgage was then a second mortgage on that quarter, and a first mortgage on the north quarter. Mr. Rose then got a Federal Land Bank loan on the south quarter with improvements on to take up the Lincoln Joint Stock Land Bank mortgage, and several years of taxes. Foreclosure was instituted against Mr. Rose, who eventually gave a deed to W. T. Wilcox and Victor H. Halligan, Trustee of the estate of John J. Halligan, deceased. The mortgage to the Federal Land Bank of around $3,500 was then paid off."

Accepting the statement of facts above set forth as true, and, indeed, fully sustained by the proof, they disclose a cause fairly within the law authorizing partition, and necessarily invoke the rule: "Where a case is fairly within the law authorizing a partition, the right to partition is imperative, and absolutely binding upon courts of equity. In such a case the right of partition is a matter of right, and not of mere grace." Oliver v. Lansing, 50 Neb. 828, 70 N.W. 369. See, also, Windle v. Kelly, 135 Neb. 143, 280 N.W. 445.

The pleadings disclose that the petition filed by Wesley T. Wilcox, as plaintiff, fully complies with the requirements of sections 20-2170 and 20-2171, Comp.St.1929. To this petition the defendants, Carrie S. Halligan, widow of John J. Halligan, deceased, Victor H. Halligan and Louise Halligan, his wife, Victor H. Halligan, trustee of the estate of John J. Halligan, deceased, Kathleen D. Halligan, and Nancy Jane Halligan, filed their respective answers in said cause, each setting forth the amount and nature of their respective interests. None of the defendants denied the interests of plaintiff in the premises sought to be partitioned. No replies were filed to such answers by plaintiff, and the allegations thereof were in no manner contradicted by any documentary proof of title filed by the respective parties therein. Under such circumstances, the statements in the petition, and in the answers so filed, are required to be taken as true. It follows that so far as the pleadings are concerned, this proceeding in partition may not be deemed adversary in character, and plaintiff's right to partition is conceded by all parties and cannot be made an issue in this case.

The record discloses that this case, after completion of the issues proceeded in the regular manner. On November 14, 1940, judgment in partition was entered without contest, and George B. Dent was appointed referee. On November 16, 1940, the referee so appointed reported that said property would have to be sold, and on the same date the court ordered the referee to sell the property which was the subject of the partition action. This was consistent with defendants' pleadings and the relief prayed for therein. No objections were made by any of the parties to the order thus entered. The sale was held by the referee on January 18, 1941, at which plaintiff was the highest bidder for all of the property, his bid being $3,650. It appears that defendants, Victor H. Halligan and Louise Halligan, his wife, Victor H. Halligan, trustee of the estate of John J. Halligan, deceased, and Carrie S. Halligan, filed a ...