Bickel v. McAleer. CHARLES B. BICKEL, APPELLEE, V. CATHERINE MC- AND JOHN C. WATSON, APPELLEE, V. CATHERINE MCALEER [FILED OCTOBER 26, 1892.] Review: FINDINGS OF TRIAL COURT. In this court the presumption is in favor of the correctness of the finding of fact by the trial court, and such finding will not be reversed unless clearly wrong. APPEAL from the district court for Otoe county. Heard below before FIELD, J. Pound & Burr, for appellants. Frank T. Ransom, and John C. Watson, contra. POST, J. The appellees commenced separate actions in the district court of Otoe county for the purpose of setting aside a conveyance by the defendants Miles and John McAleer, dated September 21, 1888, for the west half of section 22 and the northwest quarter of section 23, all in township 9, range 10, in Otoe county; also a conveyance by Miles McAleer to Thomas F. McAleer for the southeast quarter of section 23 in said township and range, dated August 22, 1888, on the ground that said conveyances were without consideration and made for the purpose of defrauding the creditors of the said Miles and John McAleer. The answers of the several defendants put in issue all the material allegations of the petitions except the conveyances, which are admitted. The court below found that the southwest quarter of section 23 was the homestead of 35 515 47 727 35 515 60 493 Bickel v. McAleer. the defendant Catherine McAleer, and had been occupied as such for many years by her and her husband, James McAleer, who held the title thereto at the time of his death in the month of September, 1888, and both petitions were accordingly dismissed as to that tract. The court further found that the conveyance of the southeast quarter of section 22 to Thomas F. McAleer was without consideration and in fraud of the rights of the creditors of Miles McAleer, the grantor thereof. There was a further finding that the defendants John and Miles McAleer, as heirs at law of James McAleer, deceased, each had an undivided seventh interest in the west half of section 22, subject to the dower interest of their mother, Catherine McAleer, and that the conveyance to the latter by said Miles and John was without consideration and in fraud of the rights of their creditors. The decree provided for the sale of the interests of said defendants, as found in the real estate above mentioned, to satisfy the judgments of the plaintiffs, from which the defendants appeal. It will serve no useful purpose to set out the evidence adduced on the hearing in the district court, or a statement of the facts proven. This is a typical case of its class and clearly within the rule so well settled in this court, viz., that all presumptions are in favor of the finding below, and the judgment of the trial court will not be disturbed unless clearly wrong. We have carefully read over the bill of exceptions and think there is evidence sufficient to sustain the finding, and the judgment of the district court is THE other judges concur. AFFIRMED. Galligher v, Connell. THEODORE GALLIGHER V. WILLIAM J. CONNELL. [FILED OCTOBER 26, 1892.] 1. Forcible Entry and Detention: PRIOR POSSESSION. Where a grantee of real estate, on receiving his deed, takes undisputed possession of the property conveyed, and in good faith continues in possession thereof, by himself, his agent or tenant, causing the premises to be fenced and cultivated, such facts constitute a prior possession which will entitle such grantee or his tenant to prosecute one by whom he is dispossessed for forcible entry and detention. : EVIDENCE. In a proceeding for forcible entry and detention the plaintiff may be permitted to prove payment of taxes by one under whom he claims, for the purpose of showing that the claim and possession of the latter is in good faith. 3. Instructions set out in the opinion, held, properly given and refused. 4 Evidence examined, and held sufficient to sustain the judgment of the trial court. ERROR to the district court for Douglas county. Tried below before DOANE, J. Gregory, Day & Day, for plaintiff in error. Connell & Ives, contra. POST, J. This was an action for forcible entry and detention of certain real estate in the city of Omaha, and comes into this court by petition in error from the district court of Douglas county. A former judgment in the same case was reversed in this court. (Galligher v. Connell, 23 Neb., 391.) The first ground for reversal assigned by counsel for plaintiff in error at this time is, that there is not sufficient evidence to sustain the verdict in favor of the defendant in It is said in the former opinion, page 403: "It is error. Galligher v. Connell. claimed, however, that the rights of Mr. Connell date from the time of his alleged possession by cutting brush in the winter of 1884 and 1885, and by the plowing which he caused to be done in the spring of 1885. But such acts will not of themselves create a lawful possession. So far as the record discloses, the entry of Mr. Connell therein was unlawful and forcible, even if it is admitted he was acting under Peabody. There is no evidence that Peabody had any title to the half lot in controversy." On the second trial the defendant in error introduced a deed from Joel T. Griffin and Rollin C. Smith, the parties who subdivided and platted the addition in question, for the property in controversy to Wm. L. Peabody, dated February 25, 1869, together with the original plat thereof. He also testifies that Mr. Peabody took possession soon afterward under his deed and remained in possession until some time in 1880, when he left the state; that it was completely enclosed by Peabody, by a good, substantial wire fence and posts, the latter being about eight feet apart, some of which still remain standing; that he, Peabody, planted trees thereon, twenty or thirty of which are still standing; that about the year 1883, Peabody, by letter, requested him to take possession of the property and hold it for the former; that he enclosed it, with land of his own, by a barbed wire fence, which was removed by order of the city marshal, being prohibited by ordinance. On removing the barbed wire he rebuilt the fence with boards and cleared away the sumach bushes; that in the year of 1884 he arranged with a tenant to cultivate the land in controversy with his own in the same enclosure; that the latter was engaged in plowing when dispossessed by plaintiff in error Galligher, and that he had been in the continual, uninterrupted possession by himself or tenant from the year 1883, until the entry of Galligher. The evidence is therefore entirely different from that adduced on the former trial. Nor can the verdict be said to be against the weight of evidence in the sense that would Galligher v. Connell. warrant this court in interfering. It tends to establish the claim that defendant in error and Peabody, under whom he claims, had had the uninterrupted possession of the property in dispute since the year 1869, or shortly thereafter, under a claim of title. This is such a lawful, prior possession as will support an action of forcible entry and detention. (Campbell v. Coonradt, 22 Kan., 704.) Second-It is claimed that the district court erred in giving the following instruction at the request of the plaintiff below: "While it is the law, as stated by the supreme court, and as you have been instructed by the third instruction given you on behalf of the defendant, that the mere cutting of a few brush or the attempt to plow the land in controversy would not of itself constitute possession, nor would the attempt to enter upon the prior, actual possession of defendant (if he ever had such possession) furnish any grounds for this action, you are instructed that it is also the law that if the plaintiff, under an arrangement with Mr. Peabody, entered into the peaceful possession of the ground in controversy in 1884, with the right to occupy and use the same, and you find such to be the fact from the evidence before you, and you also find from such evidence that at such time the said ground was open, vacant, and had been abandoned, and that after Mr. Connell obtained peaceable possession of said land he built and repaired fences so as to completely enclose the same, and if you find that brush was cut in 1884 by Mr. Connell, wires removed and the fence maintained until April, 1885, and that during said month, while the fence enclosed said land, he commenced plowing said land, and while the plow was in the furrow the defendant Galligher entered upon said land, securing the plow and preventing, by threats of personal violence, the completion of said plowing by Rasmussen for Mr. Connell, such entry upon the part of Mr. Galligher would be unlawful and forcible, and it would be your duty to so decide by your verdict." |