25-21,112 Scope of relief. - Nebraska Statutes

25-21,112. Scope of relief.An action may be brought and prosecuted to final decree, judgment or order, by any person or persons, whether in actual possession or not, claiming title to, or an estate in real estate against any person or persons who claim, or apparently have an adverse estate or interest therein, for the purpose of determining such estate, or interest, canceling unenforceable liens, or claims against, or which appear to be against said real estate, and quieting the title to real estate. SourceLaws 1921, c. 130, § 1, p. 540; C.S.1922, § 5676; C.S.1929, § 76-401; R.S.1943, § 25-21,112.Annotations1. Scope of relief2. Who may bring action3. Equitable action4. Limitations of actions5. Adverse possession6. Miscellaneous1. Scope of reliefQuiet title statutes were designed to enlarge jurisdiction of courts. Action may be brought under this section which, by strict rules of equity, could not have been maintained. Allegation that legal remedy is adequate is not a defense to quiet title action brought under this section. Connealy v. Mueller, 211 Neb. 484, 319 N.W.2d 86 (1982).A lessee of real estate may maintain an action to quiet title to his leasehold. Peterson v. Vak, 169 Neb. 441, 100 N.W.2d 44 (1959).Special action to cancel oil and gas lease is in the nature of action to quiet title. Long v. Magnolia Petroleum Co., 166 Neb. 410, 89 N.W.2d 245 (1958).Allegations of cross-petition in suit to quiet title were sufficient to raise issue of mutual mistake. Gettel v. Hester, 165 Neb. 573, 86 N.W.2d 613 (1957).Where vendee has failed to perform contract for sale of real estate, vendor is entitled to have title quieted. Sofio v. Glissmann, 156 Neb. 610, 57 N.W.2d 176 (1953).In suit hereunder to quiet title against judgments claimed to be liens against real estate, it was not improper to enjoin threatened enforcement of judgment pending determination of issues. American Savings & Loan Assn. v. Barry, 123 Neb. 523, 243 N.W. 628 (1932).Amount must be tendered to quiet title against unpaid mortgage. Barney v. Chamberlain, 85 Neb. 785, 124 N.W. 482 (1910).Holder of mortgage, barred by statute of limitations, cannot ask affirmative relief. Herbage v. McKee, 82 Neb. 354, 117 N.W. 706 (1908).Decree quieting title does not bar rights not in issue. Wetherell v. Adams, 80 Neb. 589, 116 N.W. 861 (1908).Apparent lien of judgment on homestead may be removed. Smith v. Neufeld, 57 Neb. 660, 78 N.W. 278 (1899); Corey v. Schuster, 44 Neb. 269, 62 N.W. 470 (1895).Purpose of act was to prevent a multiplicity of suits. Foree v. Stubbs, 41 Neb. 271, 59 N.W. 798 (1894).Plaintiff may set up two titles, and establishment of either is sufficient. Gregory v. Langdon, 11 Neb. 166, 7 N.W. 871 (1881).Although suit could be brought in federal court by party claiming title to quiet title to real estate, the other rules governing jurisdiction of federal equity courts to such cases will apply. Barnes v. Boyd, 8 F.Supp. 584 (S. D. West Vir. 1934).2. Who may bring actionA lessee of real estate may maintain an action to quiet title to his leasehold. Peterson v. Vak, 160 Neb. 450, 70 N.W.2d 436 (1955).Action to quiet title may be maintained by any person whether in actual possession or not, and is tried as an equitable action. Morse v. Cochran, 131 Neb. 424, 268 N.W. 307 (1936).Remaindermen may maintain suit to quiet title before termination of life estate. Davis v. Davis, 107 Neb. 70, 185 N.W. 442 (1921); Naiman v. Bohlmeyer, 97 Neb. 551, 150 N.W. 829 (1915).Remainderman may maintain action to quiet title. Criswell v. Criswell, 101 Neb. 349, 163 N.W. 302 (1917).Party seeking to quiet title must do equity. Bank of Alma v. Hamilton, 85 Neb. 441, 123 N.W. 458 (1909); Humphrey v. Hays, 85 Neb. 239, 122 N.W. 987 (1909); Kerr v. McCreary, 84 Neb. 315, 120 N.W. 1117 (1909).Party to set aside decree affecting real estate must have interest therein. Stull v. Masilonka, 74 Neb. 309, 104 N.W. 188 (1905), rehearing denied 74 Neb. 322, 108 N.W. 166 (1906).Action may be maintained by one either in or out of possession. Andersen v. Andersen, 69 Neb. 565, 96 N.W. 276 (1903); Lyon v. Gombert, 63 Neb. 630, 88 N.W. 774 (1902); Ross v. McManigal, 61 Neb. 90, 84 N.W. 610 (1900); Foree v. Stubbs, 41 Neb. 271, 59 N.W. 798 (1894).Administrator cannot maintain action. Youngson v. Bond, 64 Neb. 615, 90 N.W. 556 (1902); Eayrs v. Nason, 54 Neb. 143, 74 N.W. 408 (1898).One holding under tax deed may maintain action. Merriam v. Dovey, 25 Neb. 618, 41 N.W. 550 (1889).Owner of leasehold estate may maintain action. McDonald v. Early, 15 Neb. 63, 17 N.W. 257 (1883).3. Equitable actionAction to quiet title is triable by the court as an equitable action without a jury. Frank v. Smith, 138 Neb. 382, 293 N.W. 329 (1940).Suit to quiet title is essentially an action in equity and court properly denied trial by jury. Sittler v. Wittstruck, 122 Neb. 452, 240 N.W. 562 (1932).4. Limitations of actionsAlthough a remainderman has the right to bring an action to quiet title, he is not required to do so to protect his estate in remainder from claim of adverse possession by grantee of life estate. Maxwell v. Hamel, 138 Neb. 49, 292 N.W. 38 (1940).Laches may preclude plaintiff from maintaining action. Butler v. Peterson, 79 Neb. 715, 116 N.W. 515 (1908).Statute of limitations commenced to run against quieting title action from the time adverse claim attaches. Lyons v. Carr, 77 Neb. 883, 110 N.W. 705 (1906).Action to remove cloud is not barred by lapse of time. Batty v. City of Hastings, 63 Neb. 26, 88 N.W. 139 (1901).Running of statute against action for relief on account of fraud, runs from discovery of facts constituting fraud, or facts sufficient to put person on inquiry. Parker v. Kuhn, 21 Neb. 413, 32 N.W. 74 (1887).Statute of limitations against suit to quiet title would not run against beneficiary of trust in possession until after trustee had disavowed trust. Clark v. Clark, 21 Neb. 402, 32 N.W. 157 (1887).5. Adverse possessionOne who claims title by adverse possession must prove by a preponderance of the evidence that he has been in actual, continuous, exclusive, notorious adverse possession under claim of ownership for full period of ten years. Campbell v. Buckler, 192 Neb. 336, 220 N.W.2d 248 (1974).Adverse occupant of real estate for more than ten years may maintain action to quiet title. Walker v. Bell, 154 Neb. 221, 47 N.W.2d 504 (1951).Possession by widow as holder of life estate under will, will not be deemed hostile and adverse to that of remaindermen until such knowledge is clearly brought to them. Bretschneider v. Farmers Nat. Bank of Madison, 131 Neb. 495, 268 N.W. 278 (1936).When possession of land is construed to be adverse or hostile to remainderman stated. Maurer v. Reifschneider, 89 Neb. 673, 132 N.W. 197 (1911); First Nat. Bank of Perry, Iowa v. Pilger, 78 Neb. 168, 110 N.W. 704 (1907).Requirements to acquire ownership by adverse possession stated. Lanning v. Musser, 88 Neb. 418, 129 N.W. 1022 (1911); Andrews v. Hastings, 85 Neb. 548, 123 N.W. 1035 (1909).Fencing and cultivating part of street was not sufficient to support claim of adverse possession. Field v. City of Lincoln, 85 Neb. 781, 124 N.W. 468 (1910).Exclusive occupation under claim of right is ordinarily sufficient to establish adverse possession. Ryan v. City of Lincoln, 85 Neb. 539, 123 N.W. 1021 (1909).One's adverse possession is not affected by his purchasing at tax sale. Griffith v. Smith, 27 Neb. 47, 42 N.W. 749 (1889).6. MiscellaneousIn suit to quiet title in plaintiff, uncontradicted testimony by holder of legal title that he conveyed it to plaintiff may be sufficient to make a prima facie case in favor of plaintiff who is in possession of the land. Ellsworth Corporation v. Stratbucker, 134 Neb. 246, 278 N.W. 381 (1938).Action must be laid in county in which land is. Johnson v. Samuelson, 82 Neb. 201, 117 N.W. 470 (1908).