Helming v. Forrester

Fawcett, J.

This case was advanced under our rules; it being its second appearance in this court. Our former opinion will be found reported in 87 Neb. 438. The facts are therein stated, and need not be repeated here. After the case was remanded, the petition was amended by adding the averment, “that said plaintiffs have a legal estate in and are entitled to the possession of said described premises, and said defendants since the 25th day of December, 1901, have unlawfully kept, and still unlawfully keep, the plaintiffs out of the possession of said premises.” A jury was impaneled, and the trial proceeded upon the theory that it was an action in ejectment.

The interest of Minnie O. Helming and of her heirs, defendants herein, the void character of the decree of the county court, the right of the plaintiffs to prosecute the action for possession, and the defense of the statute of limitations are all disposed of by our former opinion, which is now the law of the case. The only questions presented here, which were not disposed of there, are: (1) The plea of a defect of parties plaintiff. (2) Did the district court err in declining to submit to the jury more than the single question as to thp value of the rents and profits of the land in dispute for the years 1905 to 1908, inclusive?

The contention that there is a defect of parties plaintiff is based upon the fact that about two months prior to the commencement of the action the plaintiffs executed to their attorneys a quitclaim deed to an undivided one-half of the land in controversy. The uncontradicted evidence is that the deed was made and delivered as security only for the services to be rendered by counsel under their contract of employment. The deed was in effect a mortgage, and it was not necessary to join the grantees therein named as plaintiffs.

The evidence being undisputed that the only interest defendants have in the land is as the surviving husband and son of Minnie C. Helming, deceased, who was the surviving spouse of William F. Helming, deceased, in whom the title and ownership of the property was vest'ed at the time of his death, and that the plaintiffs are the heirs at law of the said William F. Helming, the right of possession of the plaintiffs was so conclusively established that there was nothing upon that point to submit to the jury. In the trial of an action in ejectment, where the undisputed evidence clearly establishes the right of- possession to be in one of the parties to such action, it is not error for the court to direct the verdict.

The judgment of the district court being in harmony with our former opinion, and being fully sustained by the evidence, it is

Affirmed.