Beckner v. Urban , 309 Neb. 677 ( 2021 )

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www.nebraska.gov/apps-courts-epub/
08/13/2021 01:08 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
BECKNER v. URBAN
Cite as 309 Neb. 677Brian Beckner, Special Fiduciary of the Testamentary
Trust Established Under Item Five of the Last Will
and Testament of Francis R. Urban, also known as
The Francis R. Urban Family Trust, and Janet K.
Neujahr, Personal Representative of the
Estate of Lola R. Urban, deceased,
appellees and cross-appellants, v.
Richard D. Urban, appellant
and cross-appellee.
___ N.W.2d ___
Filed July 9, 2021. No. S-20-345.
1. Limitations of Actions: Appeal and Error. The point at which a statute
of limitations begins to run must be determined from the facts of each
case, and the decision of the district court on the issue of the statute of
limitations normally will not be set aside by an appellate court unless
clearly wrong.
2. Statutes. Statutory interpretation presents a question of law.
3. Appeal and Error. On a question of law, an appellate court reaches a
conclusion independently of the court below.
4. Specific Performance: Equity. An action for specific performance
sounds in equity.
5. Foreclosure: Equity. An action to foreclose on real estate is an action
in equity.
6. Ejectment: Pleadings: Equity: Appeal and Error. In an ejectment
action, where defendant presents an equitable defense, the case is tried,
and reviewed, as an action in equity.
7. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court decides factual questions de novo on the record and, as to
questions of both fact and law, is obligated to reach a conclusion inde-
pendent of the trial court’s determination.
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BECKNER v. URBAN
Cite as 309 Neb. 6778. Limitations of Actions. The period of limitations begins to run upon
the violation of a legal right, that is, when an aggrieved party has the
right to institute and maintain suit.
9. Ejectment. The essential elements of an action for ejectment are legal
estate, a right of possession in the plaintiff, and unlawful detention by
the defendant.
10. Contracts: Vendor and Vendee: Equity. Where a contract is made
for the sale of real estate, equity treats the vendor as the trustee of the
purchaser for the land, and the purchaser as the trustee of the purchase
money for the vendor.
11. Contracts: Real Estate: Vendor and Vendee. In an executory contract
for the sale of real estate, the vendor retains the legal title to secure the
payment of the unpaid purchase money.
12. Contracts: Real Estate: Vendor and Vendee: Liens. The claim of a
vendor in a land contract is but an ordinary money debt, secured by the
contract, and his or her proceedings to enforce the lien upon the land
should be governed by the analogies of proceedings to enforce other
equitable liens, and be executed by a sale, to satisfy the amount due.
13. Contracts: Real Estate: Sales: Title. Where the owner of real estate
enters into a contract of sale, retaining legal title until purchase money
is paid, the ownership of the realty passes to and vests in the pur-
chaser, and the interest or estate acquired by the buyer is land, and the
rights conferred by the contract upon and vested in the seller are per-
sonal property.
14. ____: ____: ____: ____. The net result of an installment contract is that
the seller holds the legal title in trust for the buyer.
15. Contracts: Real Estate: Vendor and Vendee. The vendee under a
land sale contract has acquired an interest in the property that must be
extinguished before the vendor can resume possession, notwithstanding
whether a provision in the contract provides that in the event of the
vendee’s uncured default, the vendor has the right to declare the contract
terminated and repossess the premises.
16. Adverse Possession: Title: Proof: Time. A party claiming title through
adverse possession must prove by the greater weight of the evidence
that the adverse possessor has been in (1) actual, (2) continuous, (3)
exclusive, (4) notorious, and (5) adverse possession under a claim of
ownership for a statutory period of 10 years.
17. Adverse Possession. Where one enters into and holds possession of land
under an executory contract of purchase or bond for title, his entry and
possession are in subordination to, and not adverse to, the rights of the
vendor or of those holding under him or her.
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BECKNER v. URBAN
Cite as 309 Neb. 67718. Contracts: Vendor and Vendee. Where the entry upon land is under an
executory contract of purchase or bond for title, the possession of the
vendee retains its subordinate character until payment or performance
of all conditions by the vendee or until the vendee surrenders the pos-
session which he or she has had under the agreement or until he or she
has distinctly and unequivocally repudiated the title of the vendor and
such repudiation has been brought either expressly or by legal impli-
cation to the vendor’s knowledge, or until execution of a conveyance
by the vendor to the vendee terminating the executory character of
their relationship.
19. Appeal and Error. An appellate court is not obligated to engage in
an analysis that is not needed to adjudicate the case and controversy
before it.
Appeal from the District Court for Polk County: Rachel
A. Daugherty, Judge. Reversed and remanded with direction.
George H. Moyer, of Moyer, Moyer & Lafleur, for appellant.
David J. Skalka, of Croker, Huck, Kasher, DeWitt, Anderson
& Gonderinger, L.L.C., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
In this appeal, we must determine whether the sellers under
an installment land contract may employ an ejectment action—
not to recover possession of the land to enforce a forfeiture
clause, but, rather, to foreclose the buyer’s equitable title where
the remedy of foreclosure was itself barred by the applicable
statute of limitations. 1 Under the circumstances before us, the
statute of limitations and the doctrine of adverse possession
precluded the use of ejectment. We reverse the judgment of the
district court and remand the cause with direction to dismiss
the action.
1
See Neb. Rev. Stat. § 25-202 (Reissue 2016).
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BECKNER v. URBAN
Cite as 309 Neb. 677II. BACKGROUND
1. Contract
In 1980, Francis R. Urban and his wife, Lola R. Urban,
sold a quarter section of land in Polk County, Nebraska, to
their son, Richard D. Urban, by means of an installment land
contract. Under the contract, Francis and Lola were to deliver
possession of the land to Richard “coincidental with the execu-
tion” of the contract. There is no dispute that Richard has been
in possession since that time.
The contract required a downpayment and 20 annual install-
ment payments, including interest at 81⁄2 percent per annum,
commencing in March 1981. Thus, the last payment under the
contract was due in March 2000. The contract also required
Richard to pay the 1979 and subsequent real estate taxes.
The contract included provisions for Francis and Lola’s rem-
edies upon default, as follows:
If [Richard] shall fail to make any payments of prin-
cipal or interest within ninety (90) days after the same
becomes due, or fail to pay any real property taxes . . .
before the same becomes delinquent, or to do or perform
any of the other terms, provisions or promises required to
be done or performed . . . under this Agreement, [Francis
and Lola] may, at their option:
1. Declare all principal and interest due and payable
immediately and may proceed to foreclose the interest of
[Richard] under this Agreement;
2. Recover actual damages sustained by [Francis and
Lola] which would include, but not necessarily be limited
to, all expenses incurred by [Francis and Lola] in connec-
tion with this transaction, together with interest at the rate
of 12 1/2% per annum after default until such damages
shall have been paid; or
3. Pursue any other remedy to which [Francis and
Lola] might be entitled at law or equity.
[Richard] hereby expressly waives any and all statutory
stays, homestead claims and surviving spouse’s claims.
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Cite as 309 Neb. 677The contract also stated that “installments shall bear interest at
the rate of 12 1/2% per annum after due until paid.” At the time
of the contract, Francis and Lola placed a deed in escrow for
delivery to Richard “upon [Richard’s] full performance.”
In 1997, Francis died and his interest in the contract was
assigned to his testamentary trust. Lola initially served as
trustee of that trust.
At some point, the original escrowed deed was lost. In
December 2018, Lola, acting as trustee of Francis’ testamen-
tary trust, executed a new deed and unilaterally delivered it to a
different escrow agent. Richard claims to have never consented
to that act.
2. Richard’s Improvements
After Richard took possession of the property, he made
several improvements. Richard leveled the property; removed
native trees and bushes; placed a double-wide residential trailer,
a machine shed, and grain storage bins on the property; and
drilled four irrigation wells. According to Richard’s testimony,
he believed that the improved 146-acre property was worth
approximately $7,000 per acre—a significant increase from the
installment contract’s purchase price of approximately $638.75
per acre.
3. Lawsuit
In 2018, Lola, as trustee of Francis’ testamentary trust and
as an individual, filed suit against Richard in the district court
for Polk County. The suit asked the court to compel Richard
to specifically perform his obligations under the contract. Lola
requested that if Richard failed to pay the balance owed within
20 days, the court order the property be foreclosed.
Richard filed an answer claiming, among other things, that
he had adversely possessed the property for the statutorily
mandated period.
After Richard filed his answer, Lola sought and was granted
permission to amend her complaint by interlineation to assert
an alternative claim for ejection of Richard from the property,
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BECKNER v. URBAN
Cite as 309 Neb. 677including the allegations specified by statute. 2 Richard then
filed an amended answer.
4. Bench Trial
The matter was tried to the bench. By the time of trial, Janet
K. Neujahr was acting as Lola’s agent pursuant to a power
of attorney. We summarize the evidence regarding Richard’s
payments, events which occurred after the last installment due
date, and calculations of the amount outstanding.
(a) Payment History
The parties dispute the balance due on the contract. Lola
presented bank statements and a payment ledger. These doc-
uments purported to show that Richard failed to pay the
entire downpayment before taking possession, regularly under-
paid yearly installments, skipped yearly payments entirely in
1993 through 1995 and 1997, and made no further payments
after 2001.
Richard refuted Lola’s depiction of his payment history and
the amount he owed. Richard presented a document that Francis
and Lola’s accountant drafted two decades earlier, which indi-
cated that Richard paid a large sum in 1991. However, the
accountant testified in his deposition, which was admitted into
evidence at trial, that he had no recollection of preparing the
document. Richard also testified that he did not recall making
that payment. In fact, Richard had no independent recollection
of making payments on the contract besides what Lola asserted
and did not present any other evidence to refute Lola’s depic-
tion of his payment history.
Richard testified that when he made the payment in 2001,
he believed that he had paid the total amount due. Richard
stated that he demanded the deed from Lola on two separate
occasions—in 1999 or 2000, and again in 2001. He admitted
2
See Neb. Rev. Stat. § 25-2124 (Reissue 2016) (plaintiff has legal estate;
plaintiff is entitled to possession, describing real property; and defendant
unlawfully keeps plaintiff out of possession).
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BECKNER v. URBAN
Cite as 309 Neb. 677that he knew he still had payments to make under the contract
the first time he demanded the deed, but asserted that when
he demanded the deed the second time, he did not believe
he owed any more money. The district court’s judgment did
not address or make any findings regarding this portion of
Richard’s testimony.
(b) Events After Final
Installment Due Date
After Richard discontinued payments in 2001, Lola did not
demand a payment from Richard until 2014. Richard never
responded to Lola’s payment demand.
In 2016, Richard and his siblings discussed the contract at
a family meeting regarding Lola’s finances. Neujahr proposed
selling a portion of Lola’s land to pay for Lola’s long-term
care. Richard protested the idea and said that he would pay
Lola what he owed on the contract to cover Lola’s expenses,
although he did not know how much he owed.
Following the 2016 meeting, Neujahr—acting under a power
of attorney conferred by Lola’s power of attorney—informed
Richard of the amount she believed he owed on the contract.
Richard never responded, resulting in Lola’s filing the lawsuit
in 2018.
(c) Calculations
At the bench trial, the parties presented evidence regarding
the amount Richard owed on the contract. Lola submitted a
calculation considering the contractual terms, Richard’s pay-
ment history, and the accrued interest on the overdue yearly
payments. Notably, because Richard did not pay the entire
downpayment in 1980, Lola applied Richard’s installment pay-
ments first to the downpayment and then to the subsequently
overdue installment balance. According to this calculation,
Richard owed $677,023.90 as of January 17, 2020. Interest
continued to accrue on the contract.
Richard countered Lola’s calculations with three different
calculations. However, each of his calculations applied the
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BECKNER v. URBAN
Cite as 309 Neb. 677large payment; applied full payments in 1993, 1994, and 1995;
or applied payments to the penalty interest last, even though
the contract states that “[p]ayments shall apply first to the pay-
ment of interest and secondly to the payment of principal.”
5. District Court’s Judgment
Following the bench trial, the court rendered a thorough
21-page judgment, styled as an order. The court found that
§ 25-202 barred Lola from foreclosing on the property. Despite
having rejected the foreclosure claim, the court found that Lola
had superior title to the real estate and was entitled to have
Richard ejected from the property.
However, recognizing that Richard’s improvements
“enhanced the value of the [p]roperty” and that therefore he
was entitled to recover the cost of the improvements, the
court exercised its equitable powers and ordered a sheriff’s
sale of the property. The court concluded that this sale would
adequately compensate Richard for his improvements. After
the sale’s costs were paid, the judgment required the remaining
proceeds to be paid, first, to Lola to satisfy the balance Richard
owed on the contract and the remainder paid to him. Finding
that the contract unambiguously stated that all payments must
be applied first to all interest and then to the principal, the court
ruled that the balance Richard owed was $686,183.33.
Shortly after the judgment was entered, Lola moved to
amend the judgment regarding costs of the action. The court
did so.
6. Appeal
Richard filed a timely appeal. He also posted a supersedeas
bond, in the amount specified by the district court, to stay the
proceeding pending disposition of the appeal.
Shortly before Richard filed his brief on appeal, Lola died.
Brian Beckner, as special fiduciary of Francis’ trust, and
Neujahr, who had been appointed as personal representative of
Lola’s estate (collectively the successors), were substituted as
parties to represent the trust and the estate respectively.
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BECKNER v. URBAN
Cite as 309 Neb. 677When Richard filed his initial brief, he also petitioned this
court to bypass the Nebraska Court of Appeals. 3 Although we
overruled Richard’s petition to bypass, we moved the appeal to
our docket. 4 Although Beckner died shortly before submission
of the appeal, we determined that a statute allowed the appeal
to proceed. 5
III. ASSIGNMENTS OF ERROR
1. Appeal
Richard assigns, reordered and consolidated, that the district
court erred by (1) failing to apply § 25-202 to bar Lola’s action
in ejectment, (2) failing to apply the “Occupying Claimants
Act” 6 and conduct an appraisal to determine the value of the
lasting improvements that he made to the real estate, (3) find-
ing the amount due on the contract was $686,183.33, and (4)
failing to calculate the amount due on the contract by meas­
uring the rents and profits for the 4 years prior to Richard’s
receiving the summons.
2. Cross-Appeal
The successors assign that the district court erred by finding
that Lola’s claim for specific performance of the contract was
barred by § 25-202.
IV. STANDARD OF REVIEW
[1] The point at which a statute of limitations begins to run
must be determined from the facts of each case, and the deci-
sion of the district court on the issue of the statute of limita-
tions normally will not be set aside by an appellate court unless
clearly wrong. 7
3
See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2020).
4
See § 24-1106(3).
5
See Neb. Rev. Stat. § 25-1403 (Reissue 2016).
6
See Neb. Rev. Stat. §§ 76-301 to 76-311 (Reissue 2018).
7
Colwell v. Mullen, 301 Neb. 408, 918 N.W.2d 858 (2018).
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BECKNER v. URBAN
Cite as 309 Neb. 677[2,3] Statutory interpretation presents a question of law. 8
On a question of law, an appellate court reaches a conclusion
independently of the court below. 9
[4-7] An action for specific performance sounds in equity. 10
Likewise, an action to foreclose on real estate is an action in
equity. 11 In an ejectment action, where defendant presents an
equitable defense, the case is tried, and reviewed, as an action
in equity. 12 On appeal from an equity action, an appellate court
decides factual questions de novo on the record and, as to
questions of both fact and law, is obligated to reach a conclu-
sion independent of the trial court’s determination. 13
V. ANALYSIS
Because of the nature of the assigned errors on appeal and
cross-appeal, we first address the issue raised in the succes-
sors’ cross-appeal and then proceed to those raised by Richard
on appeal.
1. Cross-Appeal
In the successors’ cross-appeal, they assign that the court
erred in finding that Lola’s claim for specific performance of
the contract was barred by § 25-202. The successors argue the
statute of limitations did not start accruing until 2018, when
Lola threatened to foreclose on the property.
[8] The period of limitations begins to run upon the violation
of a legal right, that is, when an aggrieved party has the right
to institute and maintain suit. 14 Section 25-202(1) mandates
that “[a]n action for the recovery of the title or possession of
8
Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 70 (2017).
9
Id.10
See id.11
Mutual of Omaha Bank v. Watson, 297 Neb. 479, 900 N.W.2d 545 (2017).
12
Miller v. Radtke, 230 Neb. 561, 432 N.W.2d 542 (1988).
13
County of Cedar v. Thelen, 305 Neb. 351, 940 N.W.2d 521 (2020).
14
Lindner v. Kindig, 293 Neb. 661, 881 N.W.2d 579 (2016).
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BECKNER v. URBAN
Cite as 309 Neb. 677lands, tenements, or hereditaments, or for the foreclosure of
mortgages or the foreclosure of deeds of trust as mortgages
thereon, can only be brought within ten years after the cause
of action accrues.” With regard to installment contracts—in the
absence of a contractual provision allowing acceleration where
an obligation is payable by installments—the statute of limita-
tions runs against each installment individually from the time
it becomes due. 15
We have previously held that installment land contracts are
to be treated as mortgages. 16 A mortgagee is required to bring
its action within 10 years of the date the debt secured by the
mortgage matured unless, of course, the statute of limitations
had been tolled. 17 One such tolling statute is Neb. Rev. Stat.
§ 25-216 (Reissue 2016), which states:
In any cause founded on contract, when any part of the
principal or interest shall have been voluntarily paid, or
an acknowledgment of an existing liability, debt or claim,
or any promise to pay the same shall have been made in
writing, an action may be brought in such case within
the period prescribed for the same, after such payment,
acknowledgment or promise . . . .
Here, because the installments were never accelerated, the
final year in which the statute of limitations began to accrue
was 2000—when Richard’s entire debt matured. However,
Richard made a payment on the principal and interest in 2001.
Therefore, the 10-year statute of limitations recommenced in
2001. Therefore, Lola’s action for specific performance was
barred in 2011.
To avoid this result, the successors contend that Richard’s
payment of property taxes qualified as payments tolling the
15
See City of Lincoln v. Hershberger, 272 Neb. 839, 725 N.W.2d 787 (2007).
See, also, Becker v. Lammers, 193 Neb. 839, 229 N.W.2d 557 (1975).
16
See Mackiewicz v. J.J. & Associates, 245 Neb. 568, 514 N.W.2d 613(1994).
17
See PSB Credit Servs. v. Rich, 251 Neb. 474, 558 N.W.2d 295 (1997).
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BECKNER v. URBAN
Cite as 309 Neb. 677statute of limitations under § 25-216. The plain language of
the statute and contract defeats this argument. The contract
said: “[Richard] shall pay the 1979 real estate taxes and all
subsequent taxes levied against the [property].” This contract
language did not characterize real estate taxes as either “princi-
pal” or “interest.” Thus, Richard’s tax payments did not qualify
as voluntary payments under § 25-216. Nor did Richard, at any
time after 2001, acknowledge the existing liability in writing.
Therefore, § 25-216 did not toll the statute of limitations and
the court did not err in finding that Lola’s claim for specific
performance of the contract was barred by § 25-202.
2. Appeal
(a) Ejectment
[9] On appeal, Richard assigns that the court erred by fail-
ing to apply § 25-202 to bar Lola’s ejectment action. As stated
­earlier, the period of limitations begins to run upon the viola-
tion of a legal right, that is, when an aggrieved party has the
right to institute and maintain suit. 18 The essential elements of
an action for ejectment are legal estate, a right of possession
in the plaintiff, and unlawful detention by the defendant. 19
Therefore, an action for ejectment can be maintained only by
one who has both a legal estate in and a right to the immediate
possession of the demanded lands. 20
(i) Right of Possession
[10] Where a contract is made for the sale of real estate,
equity treats the vendor as the trustee of the purchaser for the
land, and the purchaser as the trustee of the purchase money
18
See Lindner v. Kindig, supra note 14.
19
K & K Farming v. Federal Intermediate Credit Bank, 237 Neb. 846, 468
N.W.2d 99 (1991).
20
See Zion Evangelical Lutheran Church v. St. John’s Evangelical Lutheran
Church, 75 Neb. 774, 106 N.W. 1010 (1906).
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Cite as 309 Neb. 677for the vendor. 21 This doctrine rests upon the equitable doctrine
that equity considers that done which ought to be done. 22
[11,12] Thus, in an executory contract for the sale of real
estate, the vendor retains the legal title to secure the payment
of the unpaid purchase money. 23 In other words, the claim of
a vendor in a land contract is but an ordinary money debt,
secured by the contract, and his or her proceedings to enforce
the lien upon the land should be governed by the analogies of
proceedings to enforce other equitable liens, and be executed
by a sale, to satisfy the amount due. 24
[13] Because this court has uniformly recognized that a
seller in a land contract retains the title as security for the
unpaid purchase money and has an equitable lien on the land
to the extent of the debt, a seller has, for all intents and pur-
poses, a purchase-money mortgage. 25 Where the owner of real
estate enters into a contract of sale, retaining legal title until
purchase money is paid, the ownership of the realty passes to
and vests in the purchaser, and the interest or estate acquired
by the buyer is land, and the rights conferred by the contract
upon and vested in the seller are personal property. 26 In a 1954
decision applying this principle to an installment land contract,
we said:
The interest the vendees acquired was real estate. The
right conferred by the contract upon the vendors was
personal property. The contract put the vendees in com-
plete possession of the real estate. Their possession was
adverse to any right of possession of the vendors. The
vendees are in possession as owners and the vendors or
21
Hendrix v. Barker, 49 Neb. 369, 68 N.W. 531 (1896).
22
Id.23
See id.24
Id.25
Mackiewicz v. J.J. & Associates, supra note 16.
26
Id.
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Cite as 309 Neb. 677their successors can never by their own volition alone
terminate that possession or ownership. 27
This line of authority is consistent with the Restatement, 28
which states that “[a] contract for deed creates a mortgage.” 29
The Restatement defines a “contract for deed” as a “contract
for the purchase and sale of real estate under which the pur-
chaser acquires the immediate right to possession of the real
estate and the vendor defers delivery of a deed until a later
time to secure all or part of the purchase price.” 30 The com-
ments characterize a contract for deed as the most commonly
used mortgage substitute. 31 According to the comments, the
primary attraction of the contract for deed is that the for-
feiture clause ostensibly provides a seller with the right to
declare the ­contract terminated, to regain possession of the real
estate, and to retain the purchaser’s prior payments as liqui-
dated damages. 32
But Nebraska law disfavors forfeiture. 33 Thus, ejectment—
where the vendee is eliminated from the title, and the vendor
acquires title and possession without giving the vendee an
opportunity to redeem and without returning payments already
made to the vendor—may be granted as a remedy for violating
the terms of a land contract only where the equities of the par-
ticular case justify such a disposition, where the property is of
less value than the contract price, and where such a procedure
would not offend against justice and equity. 34
27
Buford v. Dahlke, 158 Neb. 39, 47, 62 N.W.2d 252, 257 (1954).
28
Restatement (Third) of Property: Mortgages §§ 1.1 through 8.6 (1997).
29
See id., § 3.4(b) at 154.
30
See id., § 3.4(a) at 154.
31
See id., comment a.
32
See id.
33
See Miller v. Radtke, supra note 12.
34
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BECKNER v. URBAN
Cite as 309 Neb. 677[14,15] Ultimately, the net result of an installment contract
is that the seller holds the legal title in trust for the buyer. 35
The buyer in possession, on the other hand, is, for all practical
purposes, the owner of the property, with all the rights of an
owner, subject only to the terms of the contract. 36 Accordingly,
the vendee under a land sale contract has acquired an interest
in the property that must be extinguished before the vendor
can resume possession, notwithstanding whether a provision in
the contract provides that in the event of the vendee’s uncured
default, the vendor has the right to declare the contract termi-
nated and repossess the premises. 37
Here, Lola could not seek Richard’s ejectment from the
property. While Francis and Lola retained legal title, they con-
tracted away their rights to possess the property. The contract
did not mandate that Richard forfeited his equitable ownership
in the property upon default. Without the right to possess the
property, Lola could not seek Richard’s ejectment from it.
Even if the contract had contained a forfeiture clause,
Nebraska law would not have permitted its enforcement here.
The equities would not justify such a disposition in light of
Richard’s significant improvements to the property and the
property value significantly exceeding the contract price. 38
However, our analysis does not end here.
(ii) Adverse Possession
[16] Richard claims to have adversely possessed the prop-
erty for the statutorily mandated period under § 25-202. A
party claiming title through adverse possession must prove
by the greater weight of the evidence that the adverse pos-
sessor has been in (1) actual, (2) continuous, (3) exclusive,
35
See Mackiewicz v. J.J. & Associates, supra note 16.
36
Id.
37
Cloke v. Findlan, 165 A.D.3d 1545, 86 N.Y.S.3d 774 (2018). See, also,
Luneke v. Becker, 621 So. 2d 744 (Fla. App. 1993).
38
See Miller v. Radtke, supra note 12.
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BECKNER v. URBAN
Cite as 309 Neb. 677(4) notorious, and (5) adverse possession under a claim of
ownership for a statutory period of 10 years. 39
[17] The successors counter that Richard contractually
agreed to possess the property subordinate to Lola’s title, and
that therefore he could not “adversely” possess the property. In
Leo Egan Land Co., Inc. v. Heelan 40—the case upon which the
successors primarily rely—we said:
[W]here one enters into and holds possession of land
under an executory contract of purchase or bond for title,
his entry and possession are in subordination to, and not
adverse to, the rights of the vendor or of those holding
under him. In such case a privity exists which precludes
the idea of a hostile tortious possession pending the com-
pletion of the contract which can silently ripen into title
by adverse possession under the statute of limitations. . . .
The vendee is equitably estopped from claiming that the
possession is adverse.
Our decision in Heelan relied on an earlier decision, 41 which in
turn cited to a legal encyclopedia. 42 The current version of the
encyclopedia retains the essence of the quotation above. 43
This general authority provides some reasons for the rule.
One is the same rule which exists in cases of landlord and ten-
ant—the injustice of allowing a person who has obtained pos-
session by admitting the title of another to enjoy that title and,
in case of a failure in a proof of it, to hold the premises himself
or herself. 44 Another is the “supposed trust relation which the
parties sustain to each other.” 45
39
See Brown v. Morello, 308 Neb. 968, 957 N.W.2d 884 (2021).
40
Leo Egan Land Co., Inc. v. Heelan, 210 Neb. 263, 267-68, 313 N.W.2d
682, 685 (1981) (internal quotation marks omitted).
41
Gramann v. Beatty, 134 Neb. 568, 279 N.W. 204 (1938).
42
See id. at 573, 279 N.W. at 206 (citing “2 C. J. S. 672”).
43
See 2 C.J.S., Adverse Possession § 144 (2013).
44
See id.
45
See id. at 649.
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Cite as 309 Neb. 677[18] Yet, the mere relationship of vendor and vendee does
not of itself preclude a purchaser from holding adversely to the
seller. 46 The court in Heelan recognized the following:
Where the entry [upon land is under an executory con-
tract of purchase or bond for title], the possession [of the
vendee] retains its subordinate character until payment
or performance of all conditions by the vendee or until
he surrenders the possession which he has had under the
agreement or until he has distinctly and unequivocally
repudiated the title of his vendor and such repudiation has
been brought either expressly or by legal implication to
the vendor’s knowledge, or until execution of a convey-
ance by the vendor to the vendee terminating the execu-
tory character of their relationship. 47
Further, laches of holders of encumbrances in asserting their
rights has long received legislative recognition in the form
of limitation statutes. 48 In Nebraska, that statute is § 25-202.
Consequently, a seller under an installment contract, who has
received a distinct and unequivocal repudiation of the contract
by the buyer, cannot wait more than 10 years before commenc-
ing an ejectment action. 49
Here, the evidence shows the necessary repudiation.
Originally, Richard agreed to possess the property subordi-
nate to, and not adversely to, Lola’s title. However, in 2001,
Richard demanded the deed from Lola because he believed
that the contract was completed. This demand was a distinct
and unequivocal statement by Richard that he no longer agreed
to possess the property in a subordinate nature. At that time,
Richard’s possession became adverse. The court erred in eject-
ing Richard from the property.
46
See id., § 144.
47
See Leo Egan Land Co., Inc. v. Heelan, supra note 40, 210 Neb. at 268,
313 N.W.2d at 685 (internal quotation marks omitted).
48
See 3 Joyce Palomar, Patton and Palomar on Land Titles § 563 (3d ed.
2003).
49
See, § 25-202; Leo Egan Land Co., Inc. v. Heelan, supra note 40.
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Cite as 309 Neb. 677(b) Other Assignments
[19] Richard’s remaining assignments were contingent upon
this court’s finding that the district court did not err in eject-
ing Richard from the property. Because we have reversed the
court’s action, we decline to address those other assignments.
An appellate court is not obligated to engage in an analysis
that is not needed to adjudicate the case and controversy
before it. 50
VI. CONCLUSION
Lola could not wait for 17 years, after Richard stopped
making payments and demanded the deed, to assert her con-
tractual rights. Lola’s specific performance claim was barred
by the applicable statute of limitations. Additionally, Lola
could not eject Richard from the property, because she con-
tracted away her right to possess the property, and Richard had
adversely possessed the property. Therefore, we reverse the
district court’s judgment and remand the cause with direction
to dismiss.
Reversed and remanded with direction.
50
City of Lincoln v. County of Lancaster, 297 Neb. 256, 898 N.W.2d 374(2017).