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BECKNER v. URBAN

Cite as 309 Neb. 677

Brian Beckner, Special Fiduciary of the Testamentary 

Trust Established Under Item Five of the Last Will 

and Testament of Francis R. Urban, also known as 

The Francis R. Urban Family Trust, and Janet K. 

Neujahr, Personal Representative of the 

Estate of Lola R. Urban, deceased, 

appellees and cross-appellants, v. 

Richard D. Urban, appellant 

and cross-appellee.

___ N.W.2d ___

Filed July 9, 2021. No. S-20-345.

1. Limitations of Actions: Appeal and Error. The point at which a statute 

of limitations begins to run must be determined from the facts of each 

case, and the decision of the district court on the issue of the statute of 

limitations normally will not be set aside by an appellate court unless 

clearly wrong.

2. Statutes. Statutory interpretation presents a question of law.

3. Appeal and Error. On a question of law, an appellate court reaches a 

conclusion independently of the court below.

4. Specific Performance: Equity. An action for specific performance 

sounds in equity.

5. Foreclosure: Equity. An action to foreclose on real estate is an action 

in equity.

6. Ejectment: Pleadings: Equity: Appeal and Error. In an ejectment 

action, where defendant presents an equitable defense, the case is tried, 

and reviewed, as an action in equity.

7. Equity: Appeal and Error. On appeal from an equity action, an appellate court decides factual questions de novo on the record and, as to 

questions of both fact and law, is obligated to reach a conclusion independent of the trial court’s determination.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/03/2021 01:08 AM CDT
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8. Limitations of Actions. The period of limitations begins to run upon 

the violation of a legal right, that is, when an aggrieved party has the 

right to institute and maintain suit.

9. Ejectment. The essential elements of an action for ejectment are legal 

estate, a right of possession in the plaintiff, and unlawful detention by 

the defendant.

10. Contracts: Vendor and Vendee: Equity. Where a contract is made 

for the sale of real estate, equity treats the vendor as the trustee of the 

purchaser for the land, and the purchaser as the trustee of the purchase 

money for the vendor.

11. Contracts: Real Estate: Vendor and Vendee. In an executory contract 

for the sale of real estate, the vendor retains the legal title to secure the 

payment of the unpaid purchase money.

12. Contracts: Real Estate: Vendor and Vendee: Liens. The claim of a 

vendor in a land contract is but an ordinary money debt, secured by the 

contract, and his or her proceedings to enforce the lien upon the land 

should be governed by the analogies of proceedings to enforce other 

equitable liens, and be executed by a sale, to satisfy the amount due.

13. Contracts: Real Estate: Sales: Title. Where the owner of real estate 

enters into a contract of sale, retaining legal title until purchase money 

is paid, the ownership of the realty passes to and vests in the purchaser, and the interest or estate acquired by the buyer is land, and the 

rights conferred by the contract upon and vested in the seller are personal property.

14. ____: ____: ____: ____. The net result of an installment contract is that 

the seller holds the legal title in trust for the buyer.

15. Contracts: Real Estate: Vendor and Vendee. The vendee under a 

land sale contract has acquired an interest in the property that must be 

extinguished before the vendor can resume possession, notwithstanding 

whether a provision in the contract provides that in the event of the 

vendee’s uncured default, the vendor has the right to declare the contract 

terminated and repossess the premises.

16. Adverse Possession: Title: Proof: Time. A party claiming title through 

adverse possession must prove by the greater weight of the evidence 

that the adverse possessor has been in (1) actual, (2) continuous, (3) 

exclusive, (4) notorious, and (5) adverse possession under a claim of 

ownership for a statutory period of 10 years.

17. Adverse Possession. Where one enters into and holds possession of land 

under an executory contract of purchase or bond for title, his entry and 

possession are in subordination to, and not adverse to, the rights of the 

vendor or of those holding under him or her.
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18. Contracts: Vendor and Vendee. Where the entry upon land is under an 

executory contract of purchase or bond for title, the possession of the 

vendee retains its subordinate character until payment or performance 

of all conditions by the vendee or until the vendee surrenders the possession which he or she has had under the agreement or until he or she 

has distinctly and unequivocally repudiated the title of the vendor and 

such repudiation has been brought either expressly or by legal implication to the vendor’s knowledge, or until execution of a conveyance 

by the vendor to the vendee terminating the executory character of 

their relationship.

19. Appeal and Error. An appellate court is not obligated to engage in 

an analysis that is not needed to adjudicate the case and controversy 

before it.

Appeal from the District Court for Polk County: Rachel 

A. Daugherty, Judge. Reversed and remanded with direction.

George H. Moyer, of Moyer, Moyer & Lafleur, for appellant.

David J. Skalka, of Croker, Huck, Kasher, DeWitt, Anderson 

& Gonderinger, L.L.C., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

In this appeal, we must determine whether the sellers under 

an installment land contract may employ an ejectment action—

not to recover possession of the land to enforce a forfeiture 

clause, but, rather, to foreclose the buyer’s equitable title where 

the remedy of foreclosure was itself barred by the applicable 

statute of limitations. 1 Under the circumstances before us, the 

statute of limitations and the doctrine of adverse possession 

precluded the use of ejectment. We reverse the judgment of the 

district court and remand the cause with direction to dismiss 

the action.

1 See Neb. Rev. Stat. § 25-202 (Reissue 2016).
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II. BACKGROUND

1. Contract

In 1980, Francis R. Urban and his wife, Lola R. Urban, 

sold a quarter section of land in Polk County, Nebraska, to 

their son, Richard D. Urban, by means of an installment land 

contract. Under the contract, Francis and Lola were to deliver 

possession of the land to Richard “coincidental with the execution” of the contract. There is no dispute that Richard has been 

in possession since that time.

The contract required a downpayment and 20 annual installment payments, including interest at 81

⁄2 percent per annum, 

commencing in March 1981. Thus, the last payment under the 

contract was due in March 2000. The contract also required 

Richard to pay the 1979 and subsequent real estate taxes.

The contract included provisions for Francis and Lola’s remedies upon default, as follows:

If [Richard] shall fail to make any payments of principal or interest within ninety (90) days after the same 

becomes due, or fail to pay any real property taxes . . . 

before the same becomes delinquent, or to do or perform 

any of the other terms, provisions or promises required to 

be done or performed . . . under this Agreement, [Francis 

and Lola] may, at their option:

1. Declare all principal and interest due and payable 

immediately and may proceed to foreclose the interest of 

[Richard] under this Agreement;

2. Recover actual damages sustained by [Francis and 

Lola] which would include, but not necessarily be limited 

to, all expenses incurred by [Francis and Lola] in connection with this transaction, together with interest at the rate 

of 12 1/2% per annum after default until such damages 

shall have been paid; or

3. Pursue any other remedy to which [Francis and 

Lola] might be entitled at law or equity.

[Richard] hereby expressly waives any and all statutory 

stays, homestead claims and surviving spouse’s claims.
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The contract also stated that “installments shall bear interest at 

the rate of 12 1/2% per annum after due until paid.” At the time 

of the contract, Francis and Lola placed a deed in escrow for 

delivery to Richard “upon [Richard’s] full performance.”

In 1997, Francis died and his interest in the contract was 

assigned to his testamentary trust. Lola initially served as 

trustee of that trust.

At some point, the original escrowed deed was lost. In 

December 2018, Lola, acting as trustee of Francis’ testamentary trust, executed a new deed and unilaterally delivered it to a 

different escrow agent. Richard claims to have never consented 

to that act.

2. Richard’s Improvements

After Richard took possession of the property, he made 

several improvements. Richard leveled the property; removed 

native trees and bushes; placed a double-wide residential trailer, 

a machine shed, and grain storage bins on the property; and 

drilled four irrigation wells. According to Richard’s testimony, 

he believed that the improved 146-acre property was worth 

approximately $7,000 per acre—a significant increase from the 

installment contract’s purchase price of approximately $638.75 

per acre.

3. Lawsuit

In 2018, Lola, as trustee of Francis’ testamentary trust and 

as an individual, filed suit against Richard in the district court 

for Polk County. The suit asked the court to compel Richard 

to specifically perform his obligations under the contract. Lola 

requested that if Richard failed to pay the balance owed within 

20 days, the court order the property be foreclosed.

Richard filed an answer claiming, among other things, that 

he had adversely possessed the property for the statutorily 

mandated period.

After Richard filed his answer, Lola sought and was granted 

permission to amend her complaint by interlineation to assert 

an alternative claim for ejection of Richard from the property, 
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including the allegations specified by statute. 2 Richard then 

filed an amended answer.

4. Bench Trial

The matter was tried to the bench. By the time of trial, Janet 

K. Neujahr was acting as Lola’s agent pursuant to a power 

of attorney. We summarize the evidence regarding Richard’s 

payments, events which occurred after the last installment due 

date, and calculations of the amount outstanding.

(a) Payment History

The parties dispute the balance due on the contract. Lola 

presented bank statements and a payment ledger. These documents purported to show that Richard failed to pay the 

entire downpayment before taking possession, regularly underpaid yearly installments, skipped yearly payments entirely in 

1993 through 1995 and 1997, and made no further payments 

after 2001.

Richard refuted Lola’s depiction of his payment history and 

the amount he owed. Richard presented a document that Francis 

and Lola’s accountant drafted two decades earlier, which indicated that Richard paid a large sum in 1991. However, the 

accountant testified in his deposition, which was admitted into 

evidence at trial, that he had no recollection of preparing the 

document. Richard also testified that he did not recall making 

that payment. In fact, Richard had no independent recollection 

of making payments on the contract besides what Lola asserted 

and did not present any other evidence to refute Lola’s depiction of his payment history.

Richard testified that when he made the payment in 2001, 

he believed that he had paid the total amount due. Richard 

stated that he demanded the deed from Lola on two separate 

occasions—in 1999 or 2000, and again in 2001. He admitted 

2 See Neb. Rev. Stat. § 25-2124 (Reissue 2016) (plaintiff has legal estate; 

plaintiff is entitled to possession, describing real property; and defendant 

unlawfully keeps plaintiff out of possession).
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that he knew he still had payments to make under the contract 

the first time he demanded the deed, but asserted that when 

he demanded the deed the second time, he did not believe 

he owed any more money. The district court’s judgment did 

not address or make any findings regarding this portion of 

Richard’s testimony.

(b) Events After Final 

Installment Due Date

After Richard discontinued payments in 2001, Lola did not 

demand a payment from Richard until 2014. Richard never 

responded to Lola’s payment demand.

In 2016, Richard and his siblings discussed the contract at 

a family meeting regarding Lola’s finances. Neujahr proposed 

selling a portion of Lola’s land to pay for Lola’s long-term 

care. Richard protested the idea and said that he would pay 

Lola what he owed on the contract to cover Lola’s expenses, 

although he did not know how much he owed.

Following the 2016 meeting, Neujahr—acting under a power 

of attorney conferred by Lola’s power of attorney—informed 

Richard of the amount she believed he owed on the contract. 

Richard never responded, resulting in Lola’s filing the lawsuit 

in 2018.

(c) Calculations

At the bench trial, the parties presented evidence regarding 

the amount Richard owed on the contract. Lola submitted a 

calculation considering the contractual terms, Richard’s payment history, and the accrued interest on the overdue yearly 

payments. Notably, because Richard did not pay the entire 

downpayment in 1980, Lola applied Richard’s installment payments first to the downpayment and then to the subsequently 

overdue installment balance. According to this calculation, 

Richard owed $677,023.90 as of January 17, 2020. Interest 

continued to accrue on the contract.

Richard countered Lola’s calculations with three different 

calculations. However, each of his calculations applied the 
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large payment; applied full payments in 1993, 1994, and 1995; 

or applied payments to the penalty interest last, even though 

the contract states that “[p]ayments shall apply first to the payment of interest and secondly to the payment of principal.”

5. District Court’s Judgment

Following the bench trial, the court rendered a thorough 

21-page judgment, styled as an order. The court found that 

§ 25-202 barred Lola from foreclosing on the property. Despite 

having rejected the foreclosure claim, the court found that Lola 

had superior title to the real estate and was entitled to have 

Richard ejected from the property.

However, recognizing that Richard’s improvements 

“enhanced the value of the [p]roperty” and that therefore he 

was entitled to recover the cost of the improvements, the 

court exercised its equitable powers and ordered a sheriff’s 

sale of the property. The court concluded that this sale would 

adequately compensate Richard for his improvements. After 

the sale’s costs were paid, the judgment required the remaining 

proceeds to be paid, first, to Lola to satisfy the balance Richard 

owed on the contract and the remainder paid to him. Finding 

that the contract unambiguously stated that all payments must 

be applied first to all interest and then to the principal, the court 

ruled that the balance Richard owed was $686,183.33.

Shortly after the judgment was entered, Lola moved to 

amend the judgment regarding costs of the action. The court 

did so.

6. Appeal

Richard filed a timely appeal. He also posted a supersedeas 

bond, in the amount specified by the district court, to stay the 

proceeding pending disposition of the appeal.

Shortly before Richard filed his brief on appeal, Lola died. 

Brian Beckner, as special fiduciary of Francis’ trust, and 

Neujahr, who had been appointed as personal representative of 

Lola’s estate (collectively the successors), were substituted as 

parties to represent the trust and the estate respectively.
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When Richard filed his initial brief, he also petitioned this 

court to bypass the Nebraska Court of Appeals. 3 Although we 

overruled Richard’s petition to bypass, we moved the appeal to 

our docket. 4 Although Beckner died shortly before submission 

of the appeal, we determined that a statute allowed the appeal 

to proceed. 5

III. ASSIGNMENTS OF ERROR

1. Appeal

Richard assigns, reordered and consolidated, that the district 

court erred by (1) failing to apply § 25-202 to bar Lola’s action 

in ejectment, (2) failing to apply the “Occupying Claimants 

Act” 6 and conduct an appraisal to determine the value of the 

lasting improvements that he made to the real estate, (3) finding the amount due on the contract was $686,183.33, and (4) 

failing to calculate the amount due on the contract by measuring the rents and profits for the 4 years prior to Richard’s 

receiving the summons.

2. Cross-Appeal

The successors assign that the district court erred by finding 

that Lola’s claim for specific performance of the contract was 

barred by § 25-202.

IV. STANDARD OF REVIEW

[1] The point at which a statute of limitations begins to run 

must be determined from the facts of each case, and the decision of the district court on the issue of the statute of limitations normally will not be set aside by an appellate court unless 

clearly wrong. 7

3 See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2020).

4 See § 24-1106(3).

5 See Neb. Rev. Stat. § 25-1403 (Reissue 2016).

6 See Neb. Rev. Stat. §§ 76-301 to 76-311 (Reissue 2018).

7 Colwell v. Mullen, 301 Neb. 408, 918 N.W.2d 858 (2018).
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[2,3] Statutory interpretation presents a question of law. 8

On a question of law, an appellate court reaches a conclusion 

independently of the court below. 9

[4-7] An action for specific performance sounds in equity. 10

Likewise, an action to foreclose on real estate is an action in 

equity. 11 In an ejectment action, where defendant presents an 

equitable defense, the case is tried, and reviewed, as an action 

in equity. 12 On appeal from an equity action, an appellate court 

decides factual questions de novo on the record and, as to 

questions of both fact and law, is obligated to reach a conclusion independent of the trial court’s determination. 13

V. ANALYSIS

Because of the nature of the assigned errors on appeal and 

cross-appeal, we first address the issue raised in the successors’ cross-appeal and then proceed to those raised by Richard 

on appeal.

1. Cross-Appeal

In the successors’ cross-appeal, they assign that the court 

erred in finding that Lola’s claim for specific performance of 

the contract was barred by § 25-202. The successors argue the 

statute of limitations did not start accruing until 2018, when 

Lola threatened to foreclose on the property.

[8] The period of limitations begins to run upon the violation 

of a legal right, that is, when an aggrieved party has the right 

to institute and maintain suit. 14 Section 25-202(1) mandates 

that “[a]n action for the recovery of the title or possession of 

8 Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 70 (2017).

9 Id.

10 See id.

11 Mutual of Omaha Bank v. Watson, 297 Neb. 479, 900 N.W.2d 545 (2017).

12 Miller v. Radtke, 230 Neb. 561, 432 N.W.2d 542 (1988).

13 County of Cedar v. Thelen, 305 Neb. 351, 940 N.W.2d 521 (2020).

14 Lindner v. Kindig, 293 Neb. 661, 881 N.W.2d 579 (2016).
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lands, tenements, or hereditaments, or for the foreclosure of 

mortgages or the foreclosure of deeds of trust as mortgages 

thereon, can only be brought within ten years after the cause 

of action accrues.” With regard to installment contracts—in the 

absence of a contractual provision allowing acceleration where 

an obligation is payable by installments—the statute of limitations runs against each installment individually from the time 

it becomes due. 15

We have previously held that installment land contracts are 

to be treated as mortgages. 16 A mortgagee is required to bring 

its action within 10 years of the date the debt secured by the 

mortgage matured unless, of course, the statute of limitations 

had been tolled. 17 One such tolling statute is Neb. Rev. Stat. 

§ 25-216 (Reissue 2016), which states:

In any cause founded on contract, when any part of the 

principal or interest shall have been voluntarily paid, or 

an acknowledgment of an existing liability, debt or claim, 

or any promise to pay the same shall have been made in 

writing, an action may be brought in such case within 

the period prescribed for the same, after such payment, 

acknowledgment or promise . . . .

Here, because the installments were never accelerated, the 

final year in which the statute of limitations began to accrue 

was 2000—when Richard’s entire debt matured. However, 

Richard made a payment on the principal and interest in 2001. 

Therefore, the 10-year statute of limitations recommenced in 

2001. Therefore, Lola’s action for specific performance was 

barred in 2011.

To avoid this result, the successors contend that Richard’s 

payment of property taxes qualified as payments tolling the 

15 See City of Lincoln v. Hershberger, 272 Neb. 839, 725 N.W.2d 787 (2007). 

See, also, Becker v. Lammers, 193 Neb. 839, 229 N.W.2d 557 (1975).

16 See Mackiewicz v. J.J. & Associates, 245 Neb. 568, 514 N.W.2d 613 

(1994).

17 See PSB Credit Servs. v. Rich, 251 Neb. 474, 558 N.W.2d 295 (1997).
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statute of limitations under § 25-216. The plain language of 

the statute and contract defeats this argument. The contract 

said: “[Richard] shall pay the 1979 real estate taxes and all 

subsequent taxes levied against the [property].” This contract 

language did not characterize real estate taxes as either “principal” or “interest.” Thus, Richard’s tax payments did not qualify 

as voluntary payments under § 25-216. Nor did Richard, at any 

time after 2001, acknowledge the existing liability in writing. 

Therefore, § 25-216 did not toll the statute of limitations and 

the court did not err in finding that Lola’s claim for specific 

performance of the contract was barred by § 25-202.

2. Appeal

(a) Ejectment

[9] On appeal, Richard assigns that the court erred by failing to apply § 25-202 to bar Lola’s ejectment action. As stated 

earlier, the period of limitations begins to run upon the violation of a legal right, that is, when an aggrieved party has the 

right to institute and maintain suit. 18 The essential elements of 

an action for ejectment are legal estate, a right of possession 

in the plaintiff, and unlawful detention by the defendant. 19

Therefore, an action for ejectment can be maintained only by 

one who has both a legal estate in and a right to the immediate 

possession of the demanded lands. 20

(i) Right of Possession

[10] Where a contract is made for the sale of real estate, 

equity treats the vendor as the trustee of the purchaser for the 

land, and the purchaser as the trustee of the purchase money 

18 See Lindner v. Kindig, supra note 14.

19 K & K Farming v. Federal Intermediate Credit Bank, 237 Neb. 846, 468 

N.W.2d 99 (1991).

20 See Zion Evangelical Lutheran Church v. St. John’s Evangelical Lutheran 

Church, 75 Neb. 774, 106 N.W. 1010 (1906).
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for the vendor. 21 This doctrine rests upon the equitable doctrine 

that equity considers that done which ought to be done. 22

[11,12] Thus, in an executory contract for the sale of real 

estate, the vendor retains the legal title to secure the payment 

of the unpaid purchase money. 23 In other words, the claim of 

a vendor in a land contract is but an ordinary money debt, 

secured by the contract, and his or her proceedings to enforce 

the lien upon the land should be governed by the analogies of 

proceedings to enforce other equitable liens, and be executed 

by a sale, to satisfy the amount due. 24

[13] Because this court has uniformly recognized that a 

seller in a land contract retains the title as security for the 

unpaid purchase money and has an equitable lien on the land 

to the extent of the debt, a seller has, for all intents and purposes, a purchase-money mortgage. 25 Where the owner of real 

estate enters into a contract of sale, retaining legal title until 

purchase money is paid, the ownership of the realty passes to 

and vests in the purchaser, and the interest or estate acquired 

by the buyer is land, and the rights conferred by the contract 

upon and vested in the seller are personal property. 26 In a 1954 

decision applying this principle to an installment land contract, 

we said:

The interest the vendees acquired was real estate. The 

right conferred by the contract upon the vendors was 

personal property. The contract put the vendees in complete possession of the real estate. Their possession was 

adverse to any right of possession of the vendors. The 

vendees are in possession as owners and the vendors or 

21 Hendrix v. Barker, 49 Neb. 369, 68 N.W. 531 (1896).

22 Id.

23 See id.

24 Id.

25 Mackiewicz v. J.J. & Associates, supra note 16.

26 Id.
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their successors can never by their own volition alone 

terminate that possession or ownership. 27

This line of authority is consistent with the Restatement, 28

which states that “[a] contract for deed creates a mortgage.” 29

The Restatement defines a “contract for deed” as a “contract 

for the purchase and sale of real estate under which the purchaser acquires the immediate right to possession of the real 

estate and the vendor defers delivery of a deed until a later 

time to secure all or part of the purchase price.” 30 The comments characterize a contract for deed as the most commonly 

used mortgage substitute. 31 According to the comments, the 

primary attraction of the contract for deed is that the forfeiture clause ostensibly provides a seller with the right to 

declare the contract terminated, to regain possession of the real 

estate, and to retain the purchaser’s prior payments as liquidated damages. 32

But Nebraska law disfavors forfeiture. 33 Thus, ejectment—

where the vendee is eliminated from the title, and the vendor 

acquires title and possession without giving the vendee an 

opportunity to redeem and without returning payments already 

made to the vendor—may be granted as a remedy for violating 

the terms of a land contract only where the equities of the particular case justify such a disposition, where the property is of 

less value than the contract price, and where such a procedure 

would not offend against justice and equity. 34

27 Buford v. Dahlke, 158 Neb. 39, 47, 62 N.W.2d 252, 257 (1954).

28 Restatement (Third) of Property: Mortgages §§ 1.1 through 8.6 (1997).

29 See id., § 3.4(b) at 154.

30 See id., § 3.4(a) at 154.

31 See id., comment a.

32 See id.

33 See Miller v. Radtke, supra note 12.

34 Id.
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[14,15] Ultimately, the net result of an installment contract 

is that the seller holds the legal title in trust for the buyer. 35

The buyer in possession, on the other hand, is, for all practical 

purposes, the owner of the property, with all the rights of an 

owner, subject only to the terms of the contract. 36 Accordingly, 

the vendee under a land sale contract has acquired an interest 

in the property that must be extinguished before the vendor 

can resume possession, notwithstanding whether a provision in 

the contract provides that in the event of the vendee’s uncured 

default, the vendor has the right to declare the contract terminated and repossess the premises. 37

Here, Lola could not seek Richard’s ejectment from the 

property. While Francis and Lola retained legal title, they contracted away their rights to possess the property. The contract 

did not mandate that Richard forfeited his equitable ownership 

in the property upon default. Without the right to possess the 

property, Lola could not seek Richard’s ejectment from it.

Even if the contract had contained a forfeiture clause, 

Nebraska law would not have permitted its enforcement here. 

The equities would not justify such a disposition in light of 

Richard’s significant improvements to the property and the 

property value significantly exceeding the contract price. 38

However, our analysis does not end here.

(ii) Adverse Possession

[16] Richard claims to have adversely possessed the property for the statutorily mandated period under § 25-202. A 

party claiming title through adverse possession must prove 

by the greater weight of the evidence that the adverse possessor has been in (1) actual, (2) continuous, (3) exclusive, 

35 See Mackiewicz v. J.J. & Associates, supra note 16.

36 Id.

37 Cloke v. Findlan, 165 A.D.3d 1545, 86 N.Y.S.3d 774 (2018). See, also, 

Luneke v. Becker, 621 So. 2d 744 (Fla. App. 1993).

38 See Miller v. Radtke, supra note 12.
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(4) notorious, and (5) adverse possession under a claim of 

ownership for a statutory period of 10 years. 39

[17] The successors counter that Richard contractually 

agreed to possess the property subordinate to Lola’s title, and 

that therefore he could not “adversely” possess the property. In 

Leo Egan Land Co., Inc. v. Heelan 40—the case upon which the 

successors primarily rely—we said:

[W]here one enters into and holds possession of land 

under an executory contract of purchase or bond for title, 

his entry and possession are in subordination to, and not 

adverse to, the rights of the vendor or of those holding 

under him. In such case a privity exists which precludes 

the idea of a hostile tortious possession pending the completion of the contract which can silently ripen into title 

by adverse possession under the statute of limitations. . . . 

The vendee is equitably estopped from claiming that the 

possession is adverse.

Our decision in Heelan relied on an earlier decision, 41 which in 

turn cited to a legal encyclopedia. 42 The current version of the 

encyclopedia retains the essence of the quotation above. 43

This general authority provides some reasons for the rule. 

One is the same rule which exists in cases of landlord and tenant—the injustice of allowing a person who has obtained possession by admitting the title of another to enjoy that title and, 

in case of a failure in a proof of it, to hold the premises himself 

or herself. 44 Another is the “supposed trust relation which the 

parties sustain to each other.” 45

39 See Brown v. Morello, 308 Neb. 968, 957 N.W.2d 884 (2021).

40 Leo Egan Land Co., Inc. v. Heelan, 210 Neb. 263, 267-68, 313 N.W.2d 

682, 685 (1981) (internal quotation marks omitted).

41 Gramann v. Beatty, 134 Neb. 568, 279 N.W. 204 (1938).

42 See id. at 573, 279 N.W. at 206 (citing “2 C. J. S. 672”).

43 See 2 C.J.S., Adverse Possession § 144 (2013).

44 See id.

45 See id. at 649.
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[18] Yet, the mere relationship of vendor and vendee does 

not of itself preclude a purchaser from holding adversely to the 

seller. 46 The court in Heelan recognized the following:

Where the entry [upon land is under an executory contract of purchase or bond for title], the possession [of the 

vendee] retains its subordinate character until payment 

or performance of all conditions by the vendee or until 

he surrenders the possession which he has had under the 

agreement or until he has distinctly and unequivocally 

repudiated the title of his vendor and such repudiation has 

been brought either expressly or by legal implication to 

the vendor’s knowledge, or until execution of a conveyance by the vendor to the vendee terminating the executory character of their relationship. 47

Further, laches of holders of encumbrances in asserting their 

rights has long received legislative recognition in the form 

of limitation statutes. 48 In Nebraska, that statute is § 25-202. 

Consequently, a seller under an installment contract, who has 

received a distinct and unequivocal repudiation of the contract 

by the buyer, cannot wait more than 10 years before commencing an ejectment action. 49

Here, the evidence shows the necessary repudiation. 

Originally, Richard agreed to possess the property subordinate to, and not adversely to, Lola’s title. However, in 2001, 

Richard demanded the deed from Lola because he believed 

that the contract was completed. This demand was a distinct 

and unequivocal statement by Richard that he no longer agreed 

to possess the property in a subordinate nature. At that time, 

Richard’s possession became adverse. The court erred in ejecting Richard from the property.

46 See id., § 144.

47 See Leo Egan Land Co., Inc. v. Heelan, supra note 40, 210 Neb. at 268, 

313 N.W.2d at 685 (internal quotation marks omitted).

48 See 3 Joyce Palomar, Patton and Palomar on Land Titles § 563 (3d ed. 

2003).

49 See, § 25-202; Leo Egan Land Co., Inc. v. Heelan, supra note 40.
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(b) Other Assignments

[19] Richard’s remaining assignments were contingent upon 

this court’s finding that the district court did not err in ejecting Richard from the property. Because we have reversed the 

court’s action, we decline to address those other assignments. 

An appellate court is not obligated to engage in an analysis 

that is not needed to adjudicate the case and controversy 

before it. 50

VI. CONCLUSION

Lola could not wait for 17 years, after Richard stopped 

making payments and demanded the deed, to assert her contractual rights. Lola’s specific performance claim was barred 

by the applicable statute of limitations. Additionally, Lola 

could not eject Richard from the property, because she contracted away her right to possess the property, and Richard had 

adversely possessed the property. Therefore, we reverse the 

district court’s judgment and remand the cause with direction 

to dismiss.

Reversed and remanded with direction.

50 City of Lincoln v. County of Lancaster, 297 Neb. 256, 898 N.W.2d 374 

(2017).