DocketNumber: No. 11,503
Citation Numbers: 68 Neb. 383
Judges: Hastings, Kirkpatrick, Lobingier
Filed Date: 4/9/1903
Status: Precedential
Modified Date: 7/20/2022
This is a rehearing of the case which appears in 64 Neb. 814. It was held that the judgment of the lower court should be reversed, because the question of the adverse possession by the defendant of the land in controversy for the time requisite to bar plaintiff’s action was not properly submitted at the trial. The judgment was sought to be supported by the claim that the evidence of the plain
The petition, as stated in the former opinion, alleged that on and prior to Apxil 25, 1898, Helena Y. W. Knight was the owner and entitled to the immediate possession of the land; that plaintiff was her executor, and that by the terxns of her will the title passed to hixxx, and he had duly qualified, and that defendants kept hixn out of possession. Plaintiff proved at the trial no title in his testatrix. He merely tendered a deed to her made by one McLeod. The question is whether the answer tendered by the defendant Denman, in whose favor the judgment runs which is sought to be reversed, required the production of such proof. That answer was filed, under leave of court, as an amendment, and first denies “that Helena Y. W. Knight -on and prior to the 25th of April, 1898, was the owner in fee sixxxple and entitled to the possession” of the premises in controversy; the answer denies her death; denies that she left a will making the plaintiff her executor; dexxies that plaintiff was her husband, or qualified as executor; denies that he is executor; denies that he is entitled to the possession of said premises, and denies that the defendant unlawfully keeps hiixx out of such possession. The next paragraph of the answer alleges that defendant is the owner, and for more than ten years prior to the 15th day of October, 1898, he was the owner of said premises, and that dixring more than ten years immediately preceding the said 15th day of October, 1898, he has been
The first question raised is whether or not this answer denies the original title of the plaintiff’s testatrix, This court at the former hearing concluded that it did not. A somewhat careful consideration of the case leads us to the same conclusion, namely, that the answer, taken as a -whole, merely alleges, when fairly construed, a title by adverse possession, with a special denial that the title had passed to plaintiff. It fails to deny in such terms as to raise an issue, the allegation that prior to the 15th day of April, 1898, Helena V. W. Knight was the owner. It alleges that for more than ten years prior to October 25, 1898, defendant had been continually in the adverse possession of the land. It denies in ip sis verbis that on and prior to April. 25, 1898, Helena V. W: Knight was the owner and in possession. This can not be treated as a denial that she was the owner prior to the acquirement of defendant’s alleged right by adverse possession. The denial in its literal terms would be true, if only she was not the owner on the 25th day of April, or if, being the owner on thht day, she was not owner prior to that time; when construed in connection with the allegation of adverse possession more than ten years prior to October 25, 1898, the denial should be given no broader effect than that specific plea. The answer might every word of it be lit'erally true, and the original title of the testatrix have been perfect up to April 25.
The fact that the defendant Denman tendered no proof of title in himself, except by adverse possession, should be allowed no weight in considering the mere terms of his
This brings us to the consideration of the second question raised, namely, were the instructions given at the trial misleading as to the necessity of continuous adverse possession? We see no reason to alter the conclusion in that respect reached at the other hearing. The court by its sixth instruction, given at defendant’s request, told the jury, in substance, that if the cause of action accrued to the plaintiff more than ten years before the institution of this action, then it was barred. As a matter of fact there might have been an action ten years previously for the possession of these identical premises against the same defendant; that cause of action might have been interrupted in various ways; the defendant might have removed from these premises, and simply stayed away from them. While he was away the cause of action would have been interrupted. He might have entered into an agreement with the plaintiff’s testatrix to pay rent and while such promise lasted of course his possession would not be adverse. The cause of action would be at once restored in the first supposed case when he returned to the premises; in the second, when he repudiated his agreement and refused to continue the payment of rent'. This sixth instruction seems to leave the whole element of continuity in the adverse possession entirely out of the statute of limitations, and-make the sole test the mere question of whether a cause of action for these same premises had accrued against this
Each party in this case appeals to the conduct at the trial and what took place as establishing his own construction of the pleading. The question of title in the- plaintiff is submitted by the court in the fourth instruction given on the court’s own motion, but the construction contended for by the plaintiff called for such a submission of that question. While there is no denial of Helena Y. W. Knight’s title, there is a denial in express terms that it ever developed upon the plaintiff, and -a denial of plaintiff’s right of possession.
Counsel say that the plaintiff in this case could not be permitted to claim the advantage of the opening and closing which would be theirs only if their case was denied, and at the same time claim that their case Avas not denied. There .is no force in this contention. So long as tile devolution of this title from the testatrix to the plaintiff was denied, the right to open and close manifestly belonged to the plaintiff, and there can be no force in the claim that the submission of the question of plaintiff’s title and right of possession to the jury sIioavs that Helena V. W. Knight’s title was treated as denied. We are constrained to think that if the action of the trial court and of the parties at the trial is to be taken as interpreting this pleading, it certainly must be taken to have interpreted them to the effect that Helena V. W. Knight’s original ownership was undenied, but that its devolution was and that defendant was claiming by adverse possession.
Nor do we think that any force can be given to the fact that the first answer filed by the defendant in this case Avas a general denial. After filing such ansAver he seems to have been alarmed at the possibility of not being permitted to introduce, under such a plea, his evidence of adverse possession, and he thereupon resorted to the allegations in the answer which we have recited. The making of such an answer is manifestly an abandonment of the first one, and the court and the parties were evidently .justi
The proposition that the motion for a, new trial and the petition in error do not raise the objection which is now made, namely, that Mrs. Knight’s original title Was not put in issue, seems to us also to have little force. It was not necessary that it should be so raised. The question is not now raised except by the defendant in error, who brings it forward as a reason why errors committed in the course of submitting to the jury the issue of adverse possession should now be disregarded. When the plea is raised that these errors could have no force because the verdict is right and no evidence of title was introduced, it is time enough, then, for the plaintiff in error to reply that that title was not disputed by the answer.
It is recommended that the former conclusion be adhered to.
By the Court: For the reasons stated in the foregoing opinion, the former conclusion is adhered to.
Former decision adhered to.