MacK v. Luebben

341 N.W.2d 335, 215 Neb. 832, 1983 Neb. LEXIS 1353
CourtNebraska Supreme Court
DecidedDecember 9, 1983
Docket82-547
StatusPublished
Cited by10 cases

This text of 341 N.W.2d 335 (MacK v. Luebben) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacK v. Luebben, 341 N.W.2d 335, 215 Neb. 832, 1983 Neb. LEXIS 1353 (Neb. 1983).

Opinions

Boslaugh, J.

This appeal arises from an action by Dorothy Mack to quiet title to 15 acres of land located in Dakota County, Nebraska. Mack claimed ownership by virtue of a treasurer’s tax deed. Defendants Orville and Pauline Luebben and Oscar and Charlene Stone filed a cross-petition claiming ownership by adverse possession and requesting that title be quieted in them. Other defendants did not appear. Following trial, the court quieted title in Pauline Luebben subject to the conjugal rights of her husband and subject to the contractual rights of the Stones. Mack appeals.

[833]*833The legal description of the property at issue is the east 15 acres of the southeast quarter of the northwest quarter of Section 24, Township 29 North, Range 8 East, of the 8th P.M., Dakota County, Nebraska. The land is located just south of the Missouri River and is separated from the river by several acres of accretion ground. The 15 acres are otherwise surrounded by two farms owned by Oscar Stone. There is no road access to the 15 acres, and in order to reach it one must cross the land owned by Stone. A lane which had been used as a road was plowed under in the early 1950s when George Sohn, the defendants’ predecessor in title, acquired the land upon which the lane was located.

The evidence shows that the McKernan family lived upon the 15 acres from the early 1920s to 1952, with some absences of short duration. The Mc-Kernans ceased living there in 1952, although they paid taxes on the property for several years after 1952. In the early 1950s defendants’ predecessor in title, George Sohn, acquired the farm which surrounds the 15 acres on the west and the south and began using the 15 acres for farming purposes. Sohn continued to farm the 15 acres until his death in 1974. Upon his death the fee simple title was acquired by Sohn’s wife, Pauline, now Pauline Luebben. In 1976 Pauline Sohn sold the 15 acres and the surrounding farm, through a land contract, to her daughter and son-in-law, Charlene and Oscar Stone. Stone has farmed the tract since 1974. Stone recently acquired the farm which lies directly east of the tract.

The plaintiff, Dorothy Mack, is a niece of the Mc-Kernans. On November 6, 1967, Mack obtained a treasurer’s certificate of tax sale to the 15 acres when the land was sold for the delinquent taxes for 1965 and 1966. Following publication of notice, she obtained a treasurer’s tax deed on April 16, 1971, which she recorded the same day. The record also shows that Mack had obtained a quitclaim deed to the 15 acres from Ross McKernan, which she re[834]*834corded on April 21, 1970. On April 26, 1971, Mack served notice of her ownership on the Sohns. Mack testified that she used the land for recreational purposes in the 1970s.

On March 18, 1970, George Sohn paid the delinquent taxes on the property for the years 1965 and 1966, and obtained a treasurer’s redemption certificate. This was a redemption of the property from the sale to Mack. Stone has continued to farm the 15 acres until the present time. Mack filed this action on February 11, 1981.

On appeal Mack argues that the defendants did not prove that they had acquired title through adverse possession and thus had no right to redeem from the tax sale to Mack. Alternatively, Mack contends that even if the defendants had a right to redeem the property, their claims against the treasurer’s tax deed held by Mack are barred by the statute of limitations, Neb. Rev. Stat. § 77-1855 (Reissue 1981).

An action to quiet title is an action in equity and is considered de novo in the Supreme Court. Bartlett v. Kloepping, 195 Neb. 755, 240 N.W.2d 592 (1976); Neb. Rev. Stat. § 25-1925 (Reissue 1979). It is. the duty of the Supreme Court to reach an independent conclusion without reference to the findings of the District Court. Pokorski v. McAdams, 204 Neb. 725, 285 N.W.2d 824 (1979). One seeking to have title quieted in himself is required to recover on the strength of his own title and not on the weakness of his adversary’s title. Beren Corp. v. Spader, 198 Neb. 677, 255 N.W.2d 247 (1977); Bode v. Flobert Industries, Inc., 197 Neb. 488, 249 N.W.2d 750 (1977), rev’d on other grounds 211 Neb. 757, 320 N.W.2d 463 (1982). One claiming title through adverse possession may maintain an action to quiet title. Tourtelotte v. Pearce, 27 Neb. 57, 42 N.W. 915 (1889).

The evidence in the present case shows that the Sohns and Stones acquired ownership of the 15 acres through adverse possession. One who claims owner[835]*835ship by adverse possession must prove by a preponderance of the evidence that he has been in actual, continuous, exclusive, notorious, and adverse possession under a claim of ownership for a period of 10 years. Berglund v. Sisler, 210 Neb. 258, 313 N.W.2d 679 (1981); Neb. Rev. Stat. § 25-202 (Reissue 1979). The evidence here is that Stone and his predecessor in title farmed the 15 acres continuously for a period of almost 30 years. During this time, the McKernans failed to exercise their rights to the property. Under such circumstances the defendants acquired ownership to the 15 acres. See, e.g., Cunningham v. Stice, 181 Neb. 299, 147 N.W.2d 921 (1967); Dunnick v. Stockgrowers Bank of Marmouth, 191 Neb. 370, 215 N.W.2d 93 (1974). After the running of the statute an adverse possessor has an indefeasible title which can only be divested by his conveyance of the land to another, or by a subsequent disseisin for the statutory period. Hendrickson v. Glaser, 204 Neb. 492, 283 N.W.2d 41 (1979).

Neb. Rev. Stat. § 77-1824 (Reissue 1981) provides: “The owner or occupant of any land sold for taxes or any person having a lien thereupon or interest therein, may redeem the same at any time before the delivery of tax deed

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MacK v. Luebben
341 N.W.2d 335 (Nebraska Supreme Court, 1983)

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Bluebook (online)
341 N.W.2d 335, 215 Neb. 832, 1983 Neb. LEXIS 1353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-v-luebben-neb-1983.