Keleher v. Kelly

Letton, J. Margaret Keleher died intestate in 1881, in Lancaster county, Nebraska, leaving children surviving her as follows: Dennis Keleher, the plaintiff; Patrick Keleher, the father of defendants Keleher; Michael Keleher, who afterwards died unmarried and intestate; and Mary Brassel, now deceased, the mother of defendants Brassel. At the time of her death Margaret Keleher owned a homestead of 80 acres of land in the same county. Administration was had of the estate the plaintiff being appointed administrator. In the administration proceedings it became necessary to sell the real estate to pay the debts of the deceased. Application was made to the district court, a license was issued and the land sold to one Malone. Immediately afterwards Malone conveyed the premises to [128] plaintiff. This deed was placed on record on December 2, 1882. In September, 1884, Patrick Keleher and Mary Brassel began an action in the district court for Lancaster county against the plaintiff, Mike Keleher, and James Malone, alleging that each of the plaintiffs was the owner of an undivided one-fourth interest in the premises, and specifically pleading the invalidity of the proceedings whereby the plaintiff acquired the alleged title to the premises. Tins action was afterwards dismissed fór failure to give security for costs. Patrick Keleher died in 1905. Plaintiff has been in the actual, open, and notorious possession of the land claiming title to the entire estate ever since his deed from Malone was placed upon record in December, 1882. He has paid the taxes accruing, and has made some slight improvements. This action was brought by him to quiet his title. Those of the defendants who are the heirs of Patrick Keleher filed an answer and cross-petition, alleging the invalidity of the administration proceedings; that their father was the owner of an undivided one-third interest in the land, and praying that this interest may be quieted in them. The Brassel heirs filed no answer. That Patrick Keleher and Mary Brassel knew in 1884 that the plaintiff was claiming the entire title to the land as against them, and each of them, and that.he was in actual possession of the same, is shown by the fact that they began an action against him, alleging these facts. For 20 years after they had this knowledge, they left the plaintiff in quiet and undisturbed possession. The doctrine of cotenancy has no application where one cotenant virtually ousts the others and actively asserts a hostile title in himself of which they have, full notice. The right of action of Patrick Keleher, through' whom defendants claim title, had been barred by the statute of limitations for more than 10 years before he died. This was an effectual bar as against any cause of action on their part. Ballou v. Sherwood, 32 Neb. 666; Lyons v. Carr, 77 Neb. 883. [129] The judgment of the district court is clearly right, and it is therefore Affirmed. Sedgwick, J., not sitting.