Roggencamp v. Converse , 15 Neb. 105 ( 1883 )

Lake, Ch. J.

This case comes here by appeal from the district court for Lancaster county. The plaintiff claims that he was erroneously denied a jury trial. There is no error in the ruling of the court below in this particular. The action was brought to remove a cloud alleged to be resting on the nlaintiff’s title to land of which he claimed to be the owner in fee, and was, therefore, an equitable one, in which the court might but was not bound to give a jury trial. Code,. §§ 280-281. Harral v. Gray, 10 Neb., 186.

It is claimed also that the finding and judgment are not supported by the evidence; and in this connection, that a deed in fee simple of the premises from the plaintiff- and his wife to Joel N. Converse, one of the defendants, was improperly admitted in evidence in defense of the action. The objection made to the admission of this deed was, that it was “ immaterial and irrelevant, and not connected with this case at all.” That it can be seriously urged that this-objection should have been sustained is not a little surprising.

In the endeavor to make out his case, the only title to' the land which the plaintiff sought to show in himself was-that of possession. He claimed simply that he had occupied it adversely to the defendants for ten years and upwards, and that, consequently, whatever claim they had to' it- was barred by the statute of limitations.

The due execution and delivery of this deed to Converse was abundantly proved; in reality it was admitted. And it was under this deed that the defendants asserted 'their claim to the ownership of the land. They claimed on the trial, and produced an abundance of evidence to show that the plaintiff’s possession wras simply as lessee under the title conveyed by the deed, and not in hostility to it. The deed was both competent and material evidence, not only as showing the character of the defendants’ title, but as-being strongly corroborative of the oral testimony given to> the fact that about the time of its execution the plaintiff had fully recognized the ownership of Converse under it,, by becoming his tenant.

The evidence is not only sufficient to sustain the findings of the district court upon it, but it leaves no doubt whatever as to the fact that the plaintiff’s possession was such as admitted the existence of a higher title to which it was subservient; therefore it was not adverse to that title. Jackson, ex. dem. Swartwout, v. Johnson, 5 Cow., 74. The judgment is right, and it will be affirmed.

Judgment affirmed.

The other judges concur.