25-2124. Ejectment; complaint; allegations.
In an action for the recovery of real property, it shall be sufficient if the complaint states that the plaintiff has a legal estate therein, and is entitled to the possession thereof, describing the same, and that the defendant unlawfully keeps the plaintiff out of the possession. It shall not be necessary to state how the plaintiff's estate or ownership is derived.
Source
Annotations
1. Allegations
2. Title
3. Miscellaneous
1. Allegations
The essential elements of ejectment are legal estate, a right of possession in the plaintiff, and unlawful detention by the defendant. K & K Farming v. Federal Intermediate Credit Bank, 237 Neb. 846, 468 N.W.2d 99 (1991); Bridenbaugh v. Bryant, 79 Neb. 329, 112 N.W. 571 (1907).
In a proceeding in equity to establish corners and boundaries to land and protection of right of possession thereof, it is not necessary to allege how plaintiff's estate or ownership is derived. McGowan v. Neimann, 139 Neb. 639, 298 N.W. 411 (1941).
Special pleading is not required in ejectment action. Fitch v. Walsh, 94 Neb. 32, 142 N.W. 293 (1913).
In suit by administrator or executor, it is not necessary to allege that plaintiff has a legal estate in the land. Tillson v. Holloway, 90 Neb. 481, 134 N.W. 232 (1912).
Plaintiff must have both legal title and right of possession. Zion Evangelical Lutheran Church v. St. John's Evangelical Lutheran Church, 75 Neb. 774, 106 N.W. 1010 (1906).
Petition must allege plaintiff is entitled to possession. Wells v. Steckelberg, 52 Neb. 597, 72 N.W. 865 (1897); George v. McCullough, 48 Neb. 680, 67 N.W. 758 (1896).
Description of land in petition must be such as would enable a competent surveyor to locate it. Lane v. Abbott, 23 Neb. 489, 37 N.W. 82 (1888).
Where petition contains a particular description, by courses and distances, such description will prevail over a general statement that the land is part of a certain lot. Cushing v. Conness, 4 Neb. Unof. 669, 95 N.W. 855 (1903).
2. Title
Ejectment may be maintained by a vendor of real property against his vendee under an executory contract of sale where vendee is in default and contract provides for forfeiture. Abbas v. Demont, 152 Neb. 77, 40 N.W.2d 265 (1949).
Tax deed constitutes color of title. White v. Musser, 87 Neb. 628, 127 N.W. 1058 (1910).
Plaintiff must recover on strength of own title; adverse possession is defense. Abbott v. Coates, 62 Neb. 247, 86 N.W. 1058 (1901); Comstock v. Kerwin, 57 Neb. 1, 77 N.W. 387 (1898); Chicago, B. & Q. R. R. Co. v. Schalkopf, 54 Neb. 448, 74 N.W. 826 (1898); Omaha Real Estate & Trust Co. v. Kragscow, 47 Neb. 592, 66 N.W. 658 (1896).
Tax sale certificate is not color of title. Webb v. Thiele, 56 Neb. 752, 77 N.W. 56 (1898); McKeighan v. Hopkins, 14 Neb. 361, 15 N.W. 711 (1883).
Plaintiff must show legal estate, but evidence thereof need not be a perfect legal paper title. Lantry v. Wolff, 49 Neb. 374, 68 N.W. 494 (1896).
In trial of title, ejectment is proper proceeding. Snowden v. Tyler, 21 Neb. 199, 31 N.W. 661 (1887).
3. Miscellaneous
In an action in ejectment, a trial court's findings will not be set aside unless clearly wrong. K & K Farming v. Federal Intermediate Credit Bank, 237 Neb. 846, 468 N.W.2d 99 (1991).
Remedy for recovery of real estate by one claiming legal title against another in possession claiming an estate therein is an action of ejectment. Johnston v. Robertson, 171 Neb. 324, 106 N.W.2d 192 (1960).
Ejectment may be maintained by heir. Lewon v. Heath, 53 Neb. 707, 74 N.W. 274 (1898).
Verdict must respond to issues. Cannon v. Smith, 47 Neb. 917, 66 N.W. 999 (1896).
Record must affirmatively show plaintiff has interest in land. Wildman v. Shambaugh, 43 Neb. 371, 61 N.W. 578 (1895).
Action presents two questions, viz: title and right of possession. Malloy v. Malloy, 35 Neb. 224, 52 N.W. 1097 (1892).
Prior possession is sufficient to maintain. Robinson v. Gantt, 1 Neb. Unof. 51, 95 N.W. 506 (1901).