Cheney v. Straube
Nebraska Supreme Court
Error from the district court of Johnson county. Tried below before Babcock, J. In an action for breach of covenant the plaintiff, under an allegation that he was compelled to surrender possession of the land to the holder of the superior title, has the burden of proof and must clearly establish the adverse title to which he has thus surrendered and that is paramount. When the plaintiff yields up possession quietly he does so at his peril.
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Error from the district court of Johnson county. Tried below before Babcock, J. In an action for breach of covenant the plaintiff, under an allegation that he was compelled to surrender possession of the land to the holder of the superior title, has the burden of proof and must clearly establish the adverse title to which he has thus surrendered and that is paramount. When the plaintiff yields up possession quietly he does so at his peril. (2 Devlin, Deeds, secs. 925, 926; 3 Sedgwick, Damages [8th ed.], sec. 956; Landt v.' Major, 31 Pac.' Rep. [Col.], 524; Hwntv. Amidon, 40 Am. Dec. [N. Y.],…
1Opinion of the CourtPost, J.
The facts essential to an understanding of this case are fully stated in the opinion of this court on a former hearing. (See Cheney v. Straube, 35 Neb., 521). The plaintiff below, Straube, recovered on a second trial and the judgment therein has been removed into this court a second time on the petition in error of Cheney, the defendant below.
The first proposition argued on this hearing is that Straube voluntarily surrendered to Panco, the holder of the alleged paramount title, and that he has failed to establish the validity of the title thus recognized. It was said on the former hearing…
2Cases cited2 opinions
- Cheney v. StraubeNebraska Supreme Court · 1892
- Real v. HollisterNebraska Supreme Court · 1886
3Cited by1 opinion
- Walton v. CampbellNebraska Supreme Court · 1897