(Ot'rcuie Oourt, D. Nebraska.. - - ,
1. EvIDENOE-RECORD OF FORMER SUIT-IDENTITY OF CONTROVERSY.Where the question in controversy relates to the identity of certain land, record evidence is admissible to show that the same controversy has been litigated between the defendant lind the plaintiff's grantor, and determined by the state court. 2. SAME-GRANTOR AND GRANTEE-ADVERSE POSSESBlON.-The adverso holding of a grantor who has .given a warranty deed, must be established by clear and undoubted testimony, showing a change in the relations of the parties towards the land.
In Equity. John D. Howe and Geo. W. Ambrose, for complainant. E. Wakeley, for defendant. MOCRARY, C. J. This is a bill to quiet title to a tract of land in the city of Omaha, known as part of block 172i in the Omaha City Company's survey. This survey was made prior to the time when the title of the United States was extinguished. The government title, however, subsequently Tested in one John A. Horhach, who made several deeds, describing the land conveyed by reference to said plat. It a.ppears that lots were bought and sold during a considerable period of time by reference thereto, ahd that the plat was published and well known in the community. The principal question in dispute here is as to whether the land now in oontroversy is identical with said block 172t. Both parties claim under Horbach as a common source of title, and each holds a. deed for a tract of land from him through several mesne conveyances. On the sixteenth of January' 1858, Horbach conveyed by warranty deed, to one Moffat, eight lots in said block 172!; in February, 1858, Moffat conveyed the same by the same description to B. F. Allen; and in March, 1876, Allen conveyed to defendant, Miller. In 1872 Horbach conveyed the land now in controversy, by metes and bounds, without reference to the plat, to one Griffith, who in August, 1873, conveyed to plaintiff. The case turns upon a question of faot, to-wit: whether
.TONES ". lIrILLEB.
block 172! is within the tra.ct' conveyed to the plaintiff. If so, defendant has the 'earlier deed ·a.nd the better title. There is nothing on the face of the plat to fix definitelyHs precise location; and great difficulty is experienced now in determining this question, because of the obliteration of the landmarks of the survey, and the absence of a record fixing a starting point from some natural or permanent monument; which can now be fixed. Upon a careful examination of the evidence I have reached the conclusion that the initial point from which the survey, relied upon by the defendant, was made, was the correct The question is certainly not one free from doubt and difficulty, but I think the weight of evidence supports the theory of the defendant. Whatever doubt I might otherwise have would be resolved in favor of the defendant, by consideration of the fact appearing in evidence that this identical controversy has been litigated in the courts of Nebraska and ,decided in favor of defendant. See Horbach v. Miller, 4 Neb. 81. It is true that Jones, the present plaintiff, was not a party to that suit, and is, therefore, not absolutely concluded by record of the cll.se is neverthe judgment therein. But . theless admissible as evidence of the defendant's title as against Jones, who was the grantee of Horbach, 'the latter remaining in possession at the time of the suit. Unde!' the circumstances adduced in evidence I regard that adjudication as entitled to great weight in the determination of the tion at issue in this case. Horbach had warranted the title, and being himself in possession assumed the duty of defending the suit. He raised the same questions that are now presented, and they were contested throughout a protracted and earnest litigation. It is not to be presumed that Jones was' ignorant of this litigation. Assuming that he was the bona fide purchaser and the real owner-which, however, does not appear-I should be inclined to hold, upon all the evidence, that Horbach was acting for him in taking the defence. Upan the question of the admissibility of the record in the ejectment suit, as evidenoe against Jones, see Chirac v. Reinecker, 2 Pet. 613. v.B,noS-25
One other question requireq consideration. The plaintiff claims title by virtue of an alleged exclusive, adverse, and notorious possession in Horbach and his grantees since 1860, and he pleads the statute of limitations. It appears in evidEllloe that Horbach enclosed a large tract of land, including the,premises now in controversy, and exercised acts of own.rahip over the whole. It does not, however, in my judgment, sufficiently appear that, as to the tract now claimed by defendant, there was such adverse holding, under claim and color of title, as the law contemplates. Holding, as I do, that Horbach had sold this tract, by warranty deed, to Griffith, it follows that, to give him the benefit of the statute of limitations, I must be satisfied that he held adversely to his own grantee. I do not sllY that in no case a grantor, who has given a warranty deed, can hold adversely to his grantee, but I am clearly of the opinion that such holding must be established by clear and undoubted testimony, showing a ohange in the relations of the parties toward the land. The evidence here simply shows that Horbaoh enolosed this tract with other lands owned by him, and the presumption of the law in such a case is that, as to the portion which he had sold and conveyed, he was inp08session in amity with, and in subservience to, the title be had given. Where there is no claim of right the possession oannot be adverse to the true title. It follows, from these considerations, that there must be decree for the defendant.
IiETTLlllTON 11. MOSIER.
NETTLETON 'V. MOSIER
(lArouit Oourl, D. Minnaola.
In Equity. Demurrer to Bill. S. L. Pierce, for plaintiff. W. J. Hahn and J. C. McClure, fordefendantB. MCCRARY, C. J. This is a suit in chancery, brought for the purpose of setting aside a guardian's deed. The following are the material facts. Section 1, c. 59, Revised Statutes of Minnesota, provides as follows: "The judge of probate in each county, when it appears to him necessary or convenient, may appoint guardians to minors and others, being inhabitants or residents in the same county, and also to such as reside out of the state and have any estate within'the same." The bill avers application was made to the probate court of Goodhue county, Minnesota, for the appointment of a. guardian for Agnes E. Wells, a minor, and 'that in the petio' tion for such appointment it was "fraudulently and falsely stated that the said Agnes E. Wells resided in the county of Goodhue; that, in fact, she did not then and never did reside in said county, neither was she Btn inhabitant thereof," but was then and for many years thereafter a resident and inhabitant of the county of Rice, in the state of ' Upon said petition a guardian for said minor was appointed by the