The following opinion on rehearing was filed December 18, 1907. Former judgment of affirmance adhered 'to:
Sedgwick, C. J.The opinion upon the former hearing, which states the facts involved in this controversy, may be found ante, p. *355349. Two principal questions were there determined— that a vendee in possession of land under a contract of purchase upon which he has paid a part of the purchase price has equitable title in the land which on his death descends to his heirs, and that a surviving husband is not entitled to an estate by curtesy to the lands of a deceased wife held by her under such contract of purchase. Both of these propositions, are vigorously attacked.
1. This court is fully committed upon the first proposition. In Dorsey v. Hall, 7 Neb. 460, it was said: “Where a contract is made for the sale of real estate, equity considers the vendor as a trustee of the purchaser for the estate sold, and the purchaser as a trustee of the purchase money for the vendor.” This holding was approved in Burrows r. Borland, 40 Neb. 464, and in many subsequent decisions. There may be some reason for argument as to the application of this principle to contracts of purchase of school lands from the state. The law provides that the title to school lands vests in the state upon the failure of the purchaser to make the payments provided for in his contract. No proceedings for that purpose are necessary on the part of the state, but by the mere failure to make the payments the rights of the purchaser in the land are forfeited. This court has refused to make such a distinction. In Cutler v. Meeker, 71 Neb. 732, the contract was one for the sale of school lands by the state, and it was held: “The interests of a vendee in possession of real estate under a contract of sale, part of the purchase price of the land having been paid, at his death, descends to his heirs, and does not pass to his administrator. It is alienable, descendible and devisable in like manner as if it were real estate held by a legal title.” The law therefore must be considered settled in this state upon this point.
2. The reasoning supporting the second proposition is not so satisfactory. In Crawl v. Harrington, 33 Neb. 107, it is said: “The legal title still remained in the state. It was not, therefore, an estate of inheritance, and the wife *356took no dower therein. This disposes of the case without considering the other questions presented.” Thus it appears that in this case the wife was not allowed dower in the land solely because the estate was not an estate of inheritance.
In Hall v. Crabb, 56 Neb. 392, it is said: “The equitable interest which Lorina McCully had in the land in controversy at the time of her death was less than a freehold estate,' and consequently, under the authority above cited was not an estate of inheritance. Her husband was, therefore, not entitled to a tenancy by curtesy in this land, and accordingly the judgment of the district court is affirmed.” Thus, it appears that in this state the surviving husband was denied the right of curtesy in the land held by his deceased wife under contract solely because the estate of the wife in the land was not an estate of inheritance. ■ This court has many times held, as already shown, that one who holds a contract of purchase of real estate, has made payments thereon, and is in full possession of the real estate, has an interest in land that upon his or her death descends to his or her heirs; that is, the heirs inherit the estate, and yet for the purpose of denying the right of dower or curtesy we are compelled to hold that an estate which the heirs take by inheritance is not an estate of inheritance. This apparent absurdity seems to have been derived from some supposed technical definitions of the common law, yet it is difficult to see how they can be applicable under the provisions of our statutes. So far as we can see the position is wholly indefensible upon reason.
There are, nevertheless, very strong reasons for adhering to the rule established in Crawl v. Harrington and Hall v. Crabb, supra, upon the ground that it has become a rule of property. The statute under which these decisions are made has been repealed and a new statute substituted therefor. Thousands of acres of land have been conveyed in this state by the two great land grant railroads, one of whose lines extends through the state the *357entire length from east to west, and whose land grant took every, alternate section for a width of twenty miles. Thousands of acres have been sold under contract also by the state in the conveyance of its school lands. Much of this land in the natural course of events must have descended to the heirs of the original purchasers, and in all probability much of it has been sold by them under the authority of these decisions free from any cloud or claim created by the assertion of the rights of dower or curtesy. To overrule these cases would in all probability be provocative of much litigation and controversy. People who purchased relying upon the strength of these decisions being the settled law of the state would find their titles clouded by an outstanding dower right or right of curtesy, and find themselves liable to be called upon to account for rents and profits during the time the outstanding estate existed or at least as long as the-statute of limitations will permit. To overrule these cases would penalize many persons whose money was invested on the strength of these decisions and would introduce uncertainty into the lav-relating to real property. The courts have always been reluctant to change or overrule decisions which have established rules of property under which rights may have been acquired. Reid v. Wayne Circuit Judge, 132 Mich. 406, 93 N. W. 914; Sacramento Bank v. Alcorn, 121 Cal. 379, 53 Pac. 814; Smith v. Ferries & C. H. R. Co., 51 Pac. (Cal.) 710; 11 Cyc. 755. The fact that this is the first action in which the right has been asserted during all these fifteen years shows that the people of the state have doubtless relied upon these decisions. In Brader v. Brader, 85 N. W. 681, 110 Wis. 423, it is said: “Where valuable property rights have grown up» in reliance on a rule established in a decision rendered ten years prior, the court will not depart from the rule, though it does not assent to the reasoning on which it was based.” The legislature has already abolished the estates of dower and curtesy, and we deem it improper and at variance with the ordinary prac*358tice of courts to overturn a rule of property which has been in existence for so many years.
For these reasons, we are compelled to adhere to our former decision.
Affirmed.