Butler v. Peterson

113 N.W. 161, 79 Neb. 713, 1907 Neb. LEXIS 399

• Court: Nebraska Supreme Court
• Decided: July 12, 1907
• Docket: No. 14,932
• Status: Published

Opinions

Ames, C.

This is an action both by petition and cross-petition to determine and quiet title and possession in a tract of land. The facts so far as they are disclosed by the record are not in dispute. The common source of title or alleged title is one H. N. McKee, who on May 16, 1890, executed and delivered to one Edgeworth a warranty deed of the premises for an expressed consideration of $8,000, hut the name of a grantee Avas intentionally omitted from the instrument, Avhich was intended as security for a loan of money then made or thereafter to he procured. Four days afterwards Edgeworth inserted his OAvn name as grantee and caused the deed to be filed for record with the register of deeds. In May, 1891, EdgeAvorth died. Afterwards a paper, purporting to be a deed of the land from EdgeAvorth to one Allen, and executed and acknowledged October 3, 1891, Avas filed for record. This latter deed is therefore presumably a forgery. There is nothing in the record to rebut this presumption, against which counsel claiming thereunder does not contend. Afterwards Allen conveyed to one Baxter, and Baxter to the defendant Peterson. Both Baxter and Peterson seem to have relied in good faith upon the record title. Peterson has been in possession several years, paying taxes on the premises, and his grantor, Baxter, in good faith paid off and discharged a mortgage thereon executed by McKee. In September, 1905, some 15 years after the date of the Edgeworth deed and three years after that of the deed to the defendant, McKee conveyed the premises to the plaintiff. Until within a feAV months before the execution of this last mentioned deed, McKee was ignorant that his deed to Edgeworth had been completed by the insertion of the name of a grantee or had been filed for record. This state of facts establishes the title in the plaintiff beyond controversy, and the trial court so found and rendered a decree accordingly, from Avhich the defendant appealed.

The petition prayed an accounting of rents, issues and profits, which the trial court ignored. The defendant, relying upon the chain of conveyances apparent upon the public record, insisted upon his title only. He noAV desires to be subrogated to the mortgage debt discharged by his immediate grantor. We think the claim is not inequitable, if upon further investigation the evidence warrants it, and we recommend that the cause be remanded, with leave to the parties to amend their pleadings in this respect, and with instructions to the district court to take and state an account of rents and profits and of liens paid by defendants, and adjudged subrogation therefor, and in other respects that the judgment be affirmed.

The following opinion on rehearing was filed May 7, 1908. Former judgment vacated and judgment of district court reversed with directions: ■ 1. Deeds: Alterations. Evidence examined, and foufid insufficient to support a finding that the name of a grantee was inserted without authority in a deed regular upon its face, and that the same' was intended as a mortgage. 2. Quieting Title: Laches. An unexcused delay of 14 years during which a party has exercised no act of ownership over land should preclude him from maintaining an action to quiet title in himself, on the ground that a deed, regular in form and duly recorded, was executed by him in blank and the name of the grantee inserted without authority, and that the same was intended as a mortgage. Jackson and Calkins, CC., concur.

By the Court: This cause is remanded, with leave to the parties to amend their pleadings with respect to taxes and mortgage liens upon the premises in controversy discharged by the defendant or his immediate grantor, and with instructions to the district court to take and state an account between the parties, and adjudge subrogation therefor. In other respects the judgment is affirmed.

Judgment accordingly.