Phillips v. Dorris

76 N.W. 555, 56 Neb. 293, 1898 Neb. LEXIS 204

• Court: Nebraska Supreme Court
• Decided: October 5, 1898
• Docket: No. 8303
• Status: Published

Opinion

Ragan, C.

Jason G. Miller brought a suit in the district court of Saunders county against John D. Phillips and others. In his petition Miller claimed to be t'he owner in fee of an undivided one-third interest in certain real estate described in the petition. The prayer was for a partition of the land. Before the trial of thé action Miller died and it was revived in the name of his administrator. The case then proceeded to trial, and resulted in a judgment partitioning the lands. Neither the widow, the heirs, nor devisees of Miller were made parties to the action. The judgment of the district court is brought here for review on error by Phillips, the defendant below.

1.' Only a joint tenant or a tenant in common of real estate can maintain an action for its partition. (Code of Civil Procedure, sec. 802; Hurste v. Hotaling, 20 Neb. 178; Barr v. Lamaster, 48 Neb. 114.) If Miller died intestate, the title to the lands which he owned at his death descended to, and vested in, his heir at law. If he died leaving a will, the title vested in his devisee on probate of the will. Miller’s administrator was neither a tenant in common nor a joint tenant of such heir or devisee. True; by the statute the administrator or executor of a decedent is given the right to the possession of such decedent’s real estate until the estate is settled (Compiled Statutes, ch. 23, sec. 202); but this statute, of course, does not invest the administrator with any estate or interest in the. realty of the decedent, the manifest object of the statute being to invest the administrator or executor with possession of .the decedent’s real estate solely-for the purposes of administration; that is, to enable him to collect the assets and pay the debts of the estate. (Carson v. Dundas, 39 Neb. 503.) The object of a partition suit is to assign property, the fee simple title to which is held by two or more persons as joint tenants, or tenants in common, to them in severalty; and with such a suit an administrator has no concern whatever, as it is only after the estate has been settled and the administration closed that the heirs or devisees are entitled to the decedent’s estate.

2. The parties made defendants to Miller’s action in th’e district court denied his title to the real estate in controversy and set up title in themselves. This did not oust the district court of jurisdiction to hear and determine the partition suit nor make the dismissal of that snit necessary. The court was one of general jurisdiction, administering both legal and equitable remedies, and was invested with authority in that proceeding to try the issues as to the title, and, after they were determined, proceed to partition the estate among the parties found to be the owners thereof. (Wilkin v. Wilkin, 1 Johns. Ch. [N. Y.] 110; Lynch v. Lynch, 18 Neb. 586; Seymour v. Ricketts, 21 Neb. 240.)

The judgment of the district court is reversed and the cause remanded.

Reversed and remanded.