25-2170. Complaint for partition; parties; allegations.

The complaint shall describe the property, and the several interests and estates of the several joint owners, or lessees thereof, if known. All tenants in common, joint tenants, or lessees of any estate in land or interest therein, or of any mineral, coal, petroleum, or gas rights, may be compelled to make or suffer partition of such estate or estates in the manner hereinafter prescribed.

Source

Annotations

1. Right to partition

2. Procedure

3. Attorney's fees

1. Right to partition

The removal of minerals whether held in solution upon the land or resting in the soil or subsurface, is the removal of a component part of the real estate itself. The severance changes the character of the property, but it remains real estate until detached. Wheelock & Manning OO Ranches, Inc. v. Heath, 201 Neb. 835, 272 N.W.2d 768 (1978).

Once joint title in real estate is established, partition may be had as a matter of law. Yunghans v. O'Toole, 199 Neb. 317, 258 N.W.2d 810 (1977).

A life tenant who owns no other interest in the property cannot compel partition over objection of remaindermen. Dixon v. Dixon, 189 Neb. 212, 202 N.W.2d 180 (1972).

Lessee for a term of years cannot prevent partition where life tenant fails to object to partition. Hartman v. Drake, 166 Neb. 87, 87 N.W.2d 895 (1958).

Joint tenants and tenants in common of a future interest, subject to an outstanding life estate in the whole of the premises, may bring or be compelled to suffer partition. Baskins v. Krepcik, 153 Neb. 36, 43 N.W.2d 624 (1950).

When there is outstanding estate for life vested in another to the whole of the premises for which partition is sought, a remainderman cannot maintain partition over the objection of the holder of the life estate. Bodeman v. Cary, 152 Neb. 506, 41 N.W.2d 797 (1950).

This state enacted partition statute to give parties the right to sale of property and division of proceeds where partition in kind could not be made without great prejudice to the owners. Trowbridge v. Donner, 152 Neb. 206, 40 N.W.2d 655 (1950).

Each joint tenant is entitled to partition of estate continuing during life of all tenants; on death of one of two joint tenants, survivor takes all. Arthur v. Arthur, 115 Neb. 781, 215 N.W. 117 (1927).

Life tenant and remaindermen cannot require other remaindermen to submit to partition against their will, contrary to will restricting right. Freeland v. Andersen, 114 Neb. 822, 211 N.W. 167 (1926).

Remaindermen cannot maintain partition over objection of life tenant. Weddingfeld v. Weddingfeld, 109 Neb. 729, 192 N.W. 227 (1923).

Partition is not maintainable in violation of plaintiff's agreement or of restriction imposed by grantor. Wicker v. Moore, 79 Neb. 755, 113 N.W. 148 (1907).

Only joint tenant or tenant in common may maintain action; administrator cannot. Phillips v. Dorris, 56 Neb. 293, 76 N.W. 555 (1898); Barr v. Lamaster, 48 Neb. 114, 66 N.W. 1110 (1896).

Compulsory partition is matter of right of any tenant; co-reversioners may partition. Oliver v. Lansing, 50 Neb. 828, 70 N.W. 369 (1897).

2. Procedure

Petition in action for partition was not defective because of failure to allege joint tenancy where facts were alleged in detail setting out the interests of the parties. Giles v. Sheridan, 179 Neb. 257, 137 N.W.2d 828 (1965).

One of several tenants in common has an absolute right to a partition of real estate, in the absence of an agreement or other impediment to the contrary, and such action may be brought by the guardian of an incompetent person who is a tenant in common. Windle v. Kelly, 135 Neb. 143, 280 N.W. 445 (1938).

Where there is an estate for life vested in a third person in the whole of the premises of which partition is sought a remainderman cannot maintain an action in partition over the objection of the holder of the life estate. Bartels v. Seefus, 132 Neb. 841, 273 N.W. 485 (1937).

It is error to order partition, over objection of some beneficiaries, of land conveyed in trust to pay rents and profits to beneficiaries and to sell land within trustee's discretion; if trustee dies, successor should be appointed. Heiser v. Brehm, 117 Neb. 472, 221 N.W. 97 (1928).

3. Attorney's fees

Where partition proceedings are amicable and for the benefit of all parties in interest, an attorney's fee should be allowed even though there is a contest between the parties over whether property sold for fair value at partition sale. Wilcox v. Halligan, 141 Neb. 643, 4 N.W.2d 750 (1942).