reglab/statecodes huggingface dataset:
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2145 - Deed of conveyance; effect; estate conveyed.

25-2145.
Deed of conveyance; effect; estate conveyed.
Deed shall thereupon be executed by such sheriff, which shall vest in the purchaser the same estate that would have vested in the mortgagee if the equity of redemption had been foreclosed, and no other or greater; and such deeds shall be as valid as if executed by the mortgagor and mortgagee, and shall be an entire bar against each of them and all parties to the suit in which the decree for such sale was made, and against their heirs respectively, and all persons claiming under such heirs.
Source
R.S.1867, Code § 853, p. 543;
R.S.1913, § 8262;
C.S.1922, § 9215;
C.S.1929, § 20-2147;
R.S.1943, § 25-2145.
Annotations
Confirmation of sale vests in purchaser estate that would have been vested in mortgagee if equity of redemption had been foreclosed. Mauzy v. Elliott, 146 Neb. 865, 22 N.W.2d 142 (1946).
The purchaser at a foreclosure sale buys all the interests of all parties to the suit. George v. Pracheil, 92 Neb. 81, 137 N.W. 880 (1912).
Deed transfers every right and interest in the property of all parties to action, unless otherwise provided. Arterburn v. Beard, 86 Neb. 733, 126 N.W. 379 (1910).
Deed is subject to rights of parties not served. Kerr v. McCreary, 84 Neb. 315, 120 N.W. 1117 (1909).
Deed conveys all interest of mortgagor, and grantee need not account to junior mortgagee, not party to action, where latter is not seeking to redeem. City of Lincoln v. Lincoln St. Ry. Co., 75 Neb. 523, 106 N.W. 317 (1906).
Foreclosure sale transfers to purchaser every right, title and interest of all the parties to the suit. Hart v. Beardsley, 67 Neb. 145, 93 N.W. 423 (1903).
Mortgagor retains legal title and substantial interest in mortgaged premises until confirmation of sale and execution of deed, and may redeem at any time before order of confirmation becomes final. United States Nat. Bank of Omaha v. Pamp, 83 F.2d 493 (8th Cir. 1936).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2146 - Sale; proceeds; how applied.

25-2146.
Sale; proceeds; how applied.
The proceeds of every sale made under a decree in equity shall be applied to the discharge of the debt adjudged by such court to be due, and of the costs awarded, and if there be any surplus, it shall be brought into court for the use of the defendant, or of the persons entitled thereto, subject to the order of the court.
Source
R.S.1867, Code § 854, p. 543;
R.S.1913, § 8263;
C.S.1922, § 9216;
C.S.1929, § 20-2148;
R.S.1943, § 25-2146.
Annotations
District court has jurisdiction over distribution of proceeds of mortgage foreclosure sale. Mauzy v. Elliott, 146 Neb. 865, 22 N.W.2d 142 (1946).
Where plaintiff bid in the property at foreclosure sale, he cannot apply interest coupons, not included in the decree, to reduce the surplus which he must pay into court above the amount due on his lien. DeMoulin Loan & Inv. Co. v. McLain, 107 Neb. 858, 187 N.W. 123 (1922).
Court may bring in all necessary parties to complete distribution of surplus. Montague v. Marunda, 71 Neb. 805, 99 N.W. 653 (1904).
Sheriff is custodian of proceeds until confirmation; then it is his duty to pay to parties entitled. Craw v. Abrams, 68 Neb. 546, 94 N.W. 639 (1903), affirmed on rehearing 68 Neb. 553, 97 N.W. 296 (1903).
Junior mortgagee, not party to foreclosure, may claim surplus. Milligan v. Gallen, 64 Neb. 561, 90 N.W. 541 (1902).
There should be ratable application to all notes secured by mortgage though some were outlawed, where security is insufficient. Patrick v. National Bank of Commerce, 63 Neb. 200, 88 N.W. 183 (1901).
Entire proceeds of sale are subject to order of court until paid out. Conley v. State, 46 Neb. 187, 64 N.W. 708 (1895).
Officer selling property has no authority to sell on credit unless authorized by express terms of decree or statute. Hooper v. Castetter, 45 Neb. 67, 63 N.W. 135 (1895).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2147 - Sale; proceeds; surplus; disposition.

25-2147.
Sale; proceeds; surplus; disposition.
If such surplus, or any part thereof, shall remain in the court for the term of three months without being applied for, the court may direct the same to be put out at interest under the direction of the court for the benefit of the defendant, his representative or assigns, to be paid to them by the order of such court.
Source
R.S.1867, Code § 855, p. 543;
R.S.1913, § 8264;
C.S.1922, § 9217;
C.S.1929, § 20-2149;
R.S.1943, § 25-2147.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2148 - Payment by defendant of sums due; effect.

25-2148.
Payment by defendant of sums due; effect.
Whenever a complaint is filed for the satisfaction or foreclosure of any mortgage, upon which there is due any interest on any portion or installment of the principal, and there are other portions or installments to become due subsequently, the complaint shall be dismissed upon the defendant's bringing into court, at any time before the decree of sale, the principal and interest due, with costs.
Source
R.S.1867, Code § 856, p. 544;
R.S.1913, § 8265;
C.S.1922, § 9218;
C.S.1929, § 20-2150;
R.S.1943, § 25-2148;
Laws 2002, LB 876, § 38.
Annotations
Stipulation in mortgage accelerating debt for failure to pay interest or taxes will be enforced. Crawford v. Houser, 115 Neb. 62, 211 N.W. 165 (1926).
Holder may foreclose when any installment has become due; statute begins to run on each when due. Nares v. Bell, 66 Neb. 606, 92 N.W. 571 (1903).
Deposit of money with clerk of court in vacation did not extinguish indebtedness. Commercial Investment Co. v. Peck, 53 Neb. 204, 73 N.W. 452 (1897).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2149 - Payment by defendant of sums due; stay; decree.

25-2149.
Payment by defendant of sums due; stay; decree.
If, after a decree for sale, entered against a defendant in such case, he shall bring into court the principal and interest due, with costs, the proceedings in the suit shall be stayed, but the court shall enter a decree of foreclosure and sale, to be enforced by a further order of the court, upon a subsequent default in the payment of any portion or installment of the principal, or any interest thereafter to grow due.
Source
R.S.1867, Code § 857, p. 544;
R.S.1913, § 8266;
C.S.1922, § 9219;
C.S.1929, § 20-2151;
R.S.1943, § 25-2149.
Annotations
Section is applicable only to cases where foreclosure is for interest or part of principal. It was not intended to relieve party from forfeiture. Beisel v. Artman, 10 Neb. 181, 4 N.W. 1011 (1880).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2150 - Reference to sheriff; sale of premises in parcels; decree; effect.

25-2150.
Reference to sheriff; sale of premises in parcels; decree; effect.
If the defendant shall not bring into court the amount due, with costs, or if for any other cause a decree shall pass for the complainant, the court may direct a reference to a sheriff to ascertain and report the situation of the mortgaged premises, or may determine the same on oral or other testimony, and if it shall appear that the same can be sold in parcels, without injury to the parties, the decree shall direct so much of the mortgaged premises to be sold as will be sufficient to pay the amount then due on such mortgage, with costs, and such decree shall remain a security for any subsequent default.
Source
R.S.1867, Code § 858, p. 544;
R.S.1913, § 8267;
C.S.1922, § 9220;
C.S.1929, § 20-2152;
R.S.1943, § 25-2150.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2151 - Default in payment of installments subsequent to decree; order of sale.

25-2151.
Default in payment of installments subsequent to decree; order of sale.
If, in the case mentioned in section 25-2150, there shall be any default subsequent to such decree in the payment of any portion or installment of the principal, or any interest due upon such mortgage, the court may, upon the complaint of the complainant, by a further order, founded upon such first decree, direct a sale of so much of the mortgaged premises to be made, under such decree, as will be sufficient to satisfy the amount so due, with the costs of such complaint and subsequent proceedings thereon, and the same proceedings may be had as often as a default shall happen.
Source
R.S.1867, Code § 859, p. 544;
R.S.1913, § 8268;
C.S.1922, § 9221;
C.S.1929, § 20-2153;
R.S.1943, § 25-2151;
Laws 2002, LB 876, § 39.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2152 - Sale of entire property; when ordered.

25-2152.
Sale of entire property; when ordered.
If in any of the foregoing cases, it shall appear to the court that the mortgaged premises are so situated that a sale of the whole will be most beneficial to the parties, the decree shall, in the first instance, be entered for the sale of the whole premises accordingly.
Source
R.S.1867, Code § 860, p. 544;
R.S.1913, § 8269;
C.S.1922, § 9222;
C.S.1929, § 20-2154;
R.S.1943, § 25-2152.
Annotations
Where no such finding and decree, tracts must be appraised and sold separately. Rohrer v. Fassler, 2 Neb. Unof. 262, 96 N.W. 523 (1902).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2153 - Sale of entire property; proceeds; disposition.

25-2153.
Sale of entire property; proceeds; disposition.
In such case the proceeds of such sale shall be applied as well to the interest, portion, or installment of the principal due as towards the whole or residue of the sum secured by such mortgage, and not due and payable at the time of such sale; and if such residue does not bear interest, then the court may direct the same to be paid with a rebate of the legal interest, for the time during which such residue shall not be due and payable; or the court may direct the balance of the proceeds of such sale, after paying the sum due, with costs, to be put out at interest, for the benefit of the complainant, to be paid to him as the installments or portions of the principal or interest may become due, and the surplus for the benefit of the defendant, his representative, or assigns, to be paid to them on the order of the court.
Source
R.S.1867, Code § 861, p. 544;
R.S.1913, § 8270;
C.S.1922, § 9223;
C.S.1929, § 20-2155;
R.S.1943, § 25-2153.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2154 - Satisfaction or payment; certificate; delivery to register of deeds; duties of clerk of district court; fee of register of deeds.

25-2154.
Satisfaction or payment; certificate; delivery to register of deeds; duties of clerk of district court; fee of register of deeds.
In all cases of foreclosure of mortgages in the several counties in the state, it shall be the duty of the clerk of the district court, on the satisfaction or payment of the amount of the decree, to forward to the register of deeds a certificate setting forth the names of parties, plaintiff and defendant, descriptions of the premises mentioned in the decree, and the book and page where the mortgage foreclosed is recorded. For such certificate the clerk of the district court shall collect the fee required pursuant to section 33-109 for recording the certificate. Such amount shall be taxed as part of the costs in the case, and such sum shall be paid to the register of deeds as the fee for recording the certificate.
Source
Laws 1887, c. 63, § 1, p. 564;
R.S.1913, § 5614;
C.S.1922, § 4933;
C.S.1929, § 26-1010;
R.S.1943, § 25-2154;
Laws 1951, c. 106, § 1, p. 512;
Laws 1959, c. 140, § 3, p. 546;
Laws 1971, LB 495, § 1;
Laws 2012, LB14, § 3;
Laws 2017, LB152, § 1;
Laws 2017, LB268, § 2.
Annotations
Certificate issued by clerk on own motion before satisfaction of mortgage does not cancel same in favor of one with notice of facts. Ryan v. West, 63 Neb. 894, 89 N.W. 416 (1902).
If a false certificate is recorded, it does not suspend execution of decree for foreclosure and sale. Clark & Leonard Inv. Co. v. Hamilton, 54 Neb. 95, 74 N.W. 430 (1898).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2155 - Satisfaction or payment; certificate; recording and indexing; duties of register of deeds.

25-2155.
Satisfaction or payment; certificate; recording and indexing; duties of register of deeds.
It shall be the duty of the register of deeds on receipt of the certificate mentioned in section 25-2154 to enter the same upon his numerical index, and record the same in the mortgage record of his office.
Source
Laws 1887, c. 63, § 2, p. 564;
R.S.1913, § 5615;
C.S.1922, § 4934;
C.S.1929, § 26-1011;
R.S.1943, § 25-2155.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2158 - Alternative and peremptory writs.

25-2158.
Alternative and peremptory writs.
The writ is either alternative or peremptory. The alternative writ must state concisely the facts showing the obligation of the defendant to perform the act, and his omission to perform it, and command him, that immediately upon the receipt of the writ, or at some other specified time, he do the act required to be performed, or show cause before the court whence the writ issued, at a specified time and place, why he has not done so; and that he then and there return the writ, with his certificate of having done as he is commanded. The peremptory writ must be in a similar form, except that the words requiring the defendant to show cause why he has not done as commanded must be omitted.
Source
R.S.1867, Code § 647, p. 508;
R.S.1913, § 8273;
C.S.1922, § 9226;
C.S.1929, § 20-2158;
R.S.1943, § 25-2158.
Annotations
Alternative writ should contain an order to show cause. State ex rel. Krieger v. Board of Supervisors of Clay County, 171 Neb. 117, 105 N.W.2d 721 (1960).
Two types of writs of mandamus are recognized and defined. State ex rel. Beck v. Chicago, St. P., M. & O. Ry. Co., 164 Neb. 60, 81 N.W.2d 584 (1957).
Nothing can be contained in the peremptory writ that is not embraced in the alternative writ. State ex rel. Shriver v. Karr, 64 Neb. 514, 90 N.W. 298 (1902).
Peremptory writ must conform strictly to command of alternative writ and clearly show duty to be performed. Laflin v. State ex rel. Gray, 49 Neb. 614, 68 N.W. 1022 (1896).
Alternative writ must state all facts necessary to justify order sought. State ex rel. Mitchell v. School Dist. No. 9 of York County, 8 Neb. 92 (1878).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2159 - Peremptory writ; when allowed in first instance.

25-2159.
Peremptory writ; when allowed in first instance.
When the right to require the performance of the act is clear and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance. In all other cases, the alternative writ must be first issued, except that a peremptory mandamus in the first instance shall not be given in any case involving the delivery of irrigation water if the Director of Natural Resources as defined in section 25-1062.01 is a party.
Source
R.S.1867, Code § 648, p. 508;
R.S.1913, § 8274;
C.S.1922, § 9227;
C.S.1929, § 20-2159;
Laws 1941, c. 29, § 9, p. 137;
C.S.Supp.,1941, § 20-2159;
R.S.1943, § 25-2159;
Laws 1957, c. 365, § 5, p. 1234;
Laws 2000, LB 900, § 68.
Annotations
When right to writ is clear and no excuse can be given for failure to perform duty, peremptory writ may be issued. State ex rel. Krieger v. Board of Supervisors of Clay County, 171 Neb. 117, 105 N.W.2d 721 (1960).
Peremptory writ may be issued without notice only where court can take judicial notice that a valid excuse is impossible. State ex rel. Beck v. Chicago, St. P., M. & O. Ry. Co., 164 Neb. 60, 81 N.W.2d 584 (1957).
Peremptory writ without notice should be issued only where legal right to it is clearly shown. Summit Fidelity & Surety Co. v. Nimtz, 158 Neb. 762, 64 N.W.2d 803 (1954).
A peremptory writ of mandamus may issue without notice only where there is no room for controversy as to the right of the applicant thereto, and where judicial notice can be taken that a valid excuse for failure to act cannot be given. State ex rel. Platte Valley Irr. Dist. v. Cochran, 139 Neb. 324, 297 N.W. 587 (1941).
Peremptory writ cannot issue without notice unless court can take judicial notice that defense is impossible. State ex rel. Chicago & N. W. Ry. Co. v. Harrington, 78 Neb. 395, 110 N.W. 1016 (1907).
Relator's right and respondent's duty must clearly appear. State ex rel. Niles v. Weston, 67 Neb. 175, 93 N.W. 182 (1903).
Peremptory writ may issue against public officer without notice but not against officer of private corporation. Horton v. State ex rel. Hayden, 60 Neb. 701, 84 N.W. 87 (1900).
Court may grant peremptory writ at chambers only when right is clear. Mayer v. State ex rel. Wilkinson, 52 Neb. 764, 73 N.W. 214 (1897).
When facts are disputed on hearing to show cause, alternative writ should issue. American Waterworks Co. v. State ex rel. O'Connor, 31 Neb. 445, 48 N.W. 64 (1891).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2160 - Peremptory writ; motion; affidavit required; notice; order to show cause; actions involving irrigation water.

25-2160.
Peremptory writ; motion; affidavit required; notice; order to show cause; actions involving irrigation water.
The motion for the writ must be made upon affidavit. The court may require a notice of the application to be given to the adverse party, may grant an order to show cause why it should not be allowed, or may grant the writ without notice. No peremptory writ of mandamus shall be allowed in any case involving the delivery of irrigation water if the Director of Natural Resources, as defined in section 25-1062.01, is a party unless notice by either registered or certified mail has been given, as provided therein, seventy-two hours prior to the time of hearing to the director and division supervisor in the water division created by section 61-212 in which the action is brought and to all appropriators whose rights to the delivery of water might in any manner be affected, of the time and place of the hearing. In such case, any person, natural or artificial, injured or likely to be injured by the granting of such writ, may intervene in such action at any stage of the proceedings and become a party to such litigation.
Source
R.S.1867, Code § 649, p. 508;
R.S.1913, § 8275;
C.S.1922, § 9228;
C.S.1929, § 20-2160;
Laws 1941, c. 29, § 10, p. 137;
C.S.Supp.,1941, § 20-2160;
R.S.1943, § 25-2160;
Laws 1957, c. 242, § 20, p. 831;
Laws 1957, c. 365, § 6, p. 1235;
Laws 2000, LB 900, § 69.
Annotations
A verification which is a part of an affidavit upon which a writ of mandamus is sought must be positively verified, and a verification based upon mere belief is inadequate. State ex rel. Van Cleave v. City of No. Platte, 213 Neb. 426, 329 N.W.2d 358 (1983).
To sustain an application for mandamus, motion for the writ must be made upon affidavit. Little v. Board of County Commissioners of Cherry County, 179 Neb. 655, 140 N.W.2d 1 (1966).
If no alternative writ has been granted, case may be heard on petition and response thereto. State ex rel. Krieger v. Board of Supervisors of Clay County, 171 Neb. 117, 105 N.W.2d 721 (1960).
Petition must be filed, and writ allowed by judge. State ex rel. Hansen v. Carrico, 86 Neb. 448, 125 N.W. 1110 (1910).
Action is not begun until motion and affidavit, or petition verified positively, filed. State ex rel. Chicago & N. W. Ry. Co. v. Harrington, 78 Neb. 395, 110 N.W. 1016 (1907).
Affidavit upon information and belief is insufficient but is amendable. Steidl v. State ex rel. School Dist. of the City of Crete, 63 Neb. 695, 88 N.W. 853 (1902).
Writ issues upon motion supported by affidavit. State ex rel. Otto v. Commissioners of Lancaster County, 49 Neb. 51, 68 N.W. 336 (1896).
Application must show prior demand and refusal, and facts showing legal duty of respondent. Kemerer v. State ex rel. Garber, 7 Neb. 130 (1878).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2161 - Writ; endorsement of allowance; service; neglect to return; penalty.

25-2161.
Writ; endorsement of allowance; service; neglect to return; penalty.
The allowance of the writ must be endorsed thereon, signed by a judge of the court granting it, and the writ must be served personally upon the defendant. If the defendant duly served neglects to return the same, he shall be proceeded against, as for a contempt.
Source
R.S.1867, Code § 650, p. 508;
R.S.1913, § 8276;
C.S.1922, § 9229;
C.S.1929, § 20-2161;
R.S.1943, § 25-2161.
Annotations
This section does not authorize judge to issue writ. Clerk of district court issues writ, authenticated by seal of the court. State ex rel. Hansen v. Carrico, 86 Neb. 448, 125 N.W. 1110 (1910).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2162 - Alternative writ; answer.

25-2162.
Alternative writ; answer.
On the return day of the alternative writ, or such further day as the court may allow, the party on whom the writ shall have been served may show cause, by answer made, in the same manner as an answer to a complaint in a civil action.
Source
R.S.1867, Code § 651, p. 508;
R.S.1913, § 8277;
C.S.1922, § 9230;
C.S.1929, § 20-2162;
R.S.1943, § 25-2162;
Laws 2002, LB 876, § 40.
Annotations
The alternative writ and answer thereto constitute the pleadings. State ex rel. Krieger v. Board of Supervisors of Clay County, 171 Neb. 117, 105 N.W.2d 721 (1960).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2163 - Peremptory writ; when issued; failure to answer, effect; pleading new matter, effect.

25-2163.
Peremptory writ; when issued; failure to answer, effect; pleading new matter, effect.
If no answer be made, a peremptory mandamus must be allowed against the defendant. If an answer be made containing new matter, the same shall not in any respect conclude the plaintiff, who may, on the trial or other proceeding, avail himself of any valid objection to its sufficiency, or may countervail it by proof, either in direct denial or by way of avoidance.
Source
R.S.1867, Code § 652, p. 508;
R.S.1913, § 8278;
C.S.1922, § 9231;
C.S.1929, § 20-2163;
R.S.1943, § 25-2163.
Annotations
The issuance of a peremptory writ of mandamus under this section because of a respondent's failure to answer the alternative writ is the equivalent of a default judgment. State ex rel. Unger v. State, 293 Neb. 549, 878 N.W.2d 540 (2016).
If no answer is filed to alternative writ, peremptory writ must be allowed. State ex rel. Krieger v. Board of Supervisors of Clay County, 171 Neb. 117, 105 N.W.2d 721 (1960).
Plaintiff may avail himself of any valid objection to new matter contained in the answer. State ex rel. Seth Thomas Clock Co. v. Board of County Commissioners of Cass County, 60 Neb. 566, 83 N.W. 733 (1900).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2164 - Pleadings; trial.

25-2164.
Pleadings; trial.
No other pleading or written allegation is allowed than the writ and answer. These are the pleadings in the case, and have the same effect and are to be construed and may be amended in the same manner as pleadings in a civil action; and the issues thereby joined must be tried, and the further proceedings thereon had in the same manner as in a civil action.
Source
R.S.1867, Code § 653, p. 508;
R.S.1913, § 8279;
C.S.1922, § 9232;
C.S.1929, § 20-2164;
R.S.1943, § 25-2164.
Annotations
1. Pleadings
2. Trial
1. Pleadings
The alternative writ and the answer constitute the pleadings. State ex rel. Krieger v. Board of Supervisors of Clay County, 171 Neb. 117, 105 N.W.2d 721 (1960).
Where no ruling was made on demurrer to return and trial was had, demurrer was held to have been waived. State ex rel. League of Municipalities v. Loup River Public Power Dist., 158 Neb. 160, 62 N.W.2d 682 (1954).
Difference between alternative and peremptory writ did not prejudice defendant. State ex rel. City of Grand Island v. Union Pacific R. R. Co., 152 Neb. 772, 42 N.W.2d 867 (1950).
In mandamus proceedings no pleading is authorized other than writ and the answer; intervention should be denied. State ex rel. Randall v. Hall, 125 Neb. 236, 249 N.W. 756 (1933).
Demurrer to alternative writ is irregular, but is treated as admission of facts alleged in writ. State ex rel. Glatfelter v. Hart, 106 Neb. 61, 182 N.W. 567 (1921).
Demurrer is proper method to assail defective petition for mandamus. State ex rel. Kelley v. Ferguson, 95 Neb. 63, 144 N.W. 1039 (1914).
Demurrer is proper to test sufficiency of petition. City of Crawford v. Darrow, 87 Neb. 494, 127 N.W. 891 (1910).
Issuance of new writ to amend old is not commencement of new action. Kas v. State ex rel. School Dist. No. 1 of Sarpy County, 63 Neb. 581, 88 N.W. 776 (1902).
No pleading other than writ and the answer is allowed. State ex rel. Wayne County v. Russell, 51 Neb. 774, 71 N.W. 785 (1897).
Upon defendant's demurrer, writ only is considered. King v. State ex rel. School Dist. No. 1 of Hall County, 50 Neb. 66, 69 N.W. 307 (1896).
Material averment in application, not denied in the answer, must be taken as true. State ex rel. Marquett, Deweese & Hall v. Baushausen, 49 Neb. 558, 68 N.W. 950 (1896).
2. Trial
Mandamus is law action, and motion for new trial is necessary. State ex rel. McKee v. Porter, 90 Neb. 233, 133 N.W. 189 (1911).
Liberal rules of amendment provided by code apply to mandamus proceeding. State ex rel. Shriver v. Karr, 64 Neb. 514, 90 N.W. 298 (1902).
Jury trial is not demandable as matter of right. Mayer v. State ex rel. Wilkinson, 52 Neb. 764, 73 N.W. 214 (1897).
Facts cannot be tried on affidavits over objection. American Waterworks Co. v. State ex rel. O'Connor, 31 Neb. 445, 48 N.W. 64 (1891).
A motion for summary judgment is a proper procedural device in an action for a writ of mandamus. Russell v. Clarke, 15 Neb. App. 221, 724 N.W.2d 840 (2006).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2165 - Judgment for plaintiff; damages; peremptory writ granted; costs and attorney's fees, authorized.

25-2165.
Judgment for plaintiff; damages; peremptory writ granted; costs and attorney's fees, authorized.
If judgment be given for the plaintiff, he or she shall recover the damages which he or she shall have sustained, to be ascertained by the court or a jury, or by referees, in a civil action, and a peremptory mandamus shall also be granted to him or her without delay. In addition to damages the court may also award costs and reasonable attorney's fees. The costs and attorney's fees shall be paid by the governmental body represented by the public official or employee.
Source
R.S.1867, Code § 654, p. 509;
R.S.1913, § 8280;
C.S.1922, § 9233;
C.S.1929, § 20-2165;
R.S.1943, § 25-2165;
Laws 1981, LB 120, § 1;
Laws 1981, LB 273, § 30.
Annotations
The right of a plaintiff to an award of attorney fees is dependent upon the plaintiff's having recovered judgment. State ex rel. PROUD v. Conley, 236 Neb. 122, 459 N.W.2d 222 (1990).
Attorney's fee is not allowable as "damages" where judgment is given for plaintiff hereunder. State ex rel. Charvat v. Sagl, 119 Neb. 374, 229 N.W. 118 (1930).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2166 - Recovery of damages; effect upon right of action.

25-2166.
Recovery of damages; effect upon right of action.
A recovery of damages by virtue of this chapter, against a party, who shall have made a return to a writ of mandamus, is a bar to any other action against the same party for the making of such return.
Source
R.S.1867, Code § 655, p. 509;
R.S.1913, § 8281;
C.S.1922, § 9234;
C.S.1929, § 20-2166;
R.S.1943, § 25-2166.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2167 - Peremptory writ directed to public officials; imposition of fine; payment; effect.

25-2167.
Peremptory writ directed to public officials; imposition of fine; payment; effect.
Whenever a peremptory mandamus is directed to any public officer, body or board, commanding the performance of any public duty, specially enjoined by law, if it appear to the court that such officer, or any member of such body or board, has without just excuse refused or neglected to perform the duty so enjoined, the court may impose a fine not exceeding five hundred dollars upon every such officer, or member of such body or board. Such fine, when collected, shall be paid into the treasury of the county where the duty ought to have been performed; and the payment thereof is a bar to an action for any penalty incurred by such officer, or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined.
Source
R.S.1867, Code § 656, p. 509;
R.S.1913, § 8282;
C.S.1922, § 9235;
C.S.1929, § 20-2167;
R.S.1943, § 25-2167.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2168 - Right of private persons to bring action.

25-2168.
Right of private persons to bring action.
Any private person may on his own relation sue out writs of mandamus without application to the prosecuting attorney.
Source
R.S.1867, Code § 2, p. 279;
R.S.1913, § 8283;
C.S.1922, § 9236;
C.S.1929, § 20-2168;
R.S.1943, § 25-2168.
Annotations
Private person may on his own relation bring mandamus action. McFarland v. State, 165 Neb. 487, 86 N.W.2d 182 (1957).
Writ is issued in name of state, upon relation of party seeking relief. City of Crawford v. Darrow, 87 Neb. 494, 127 N.W. 891 (1910).
Party may bring mandamus in name of state on his relation. State ex rel. Levy v. Spicer, 36 Neb. 469, 54 N.W. 849 (1893).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2169 - Action by private person; costs.

25-2169.
Action by private person; costs.
Private persons suing out writs of mandamus, under the provisions of sections 25-2156 to 25-2168, shall be liable for costs as in civil cases.
Source
R.S.1867, Code § 3, p. 279;
R.S.1913, § 8284;
C.S.1922, § 9237;
C.S.1929, § 20-2169;
R.S.1943, § 25-2169.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2170.01 - Who may compel partition.

25-2170.01.
Who may compel partition.
Any joint owner of any real estate or of any interest therein or of any mineral, coal, petroleum, or gas rights, whether held in fee or by lease or otherwise, may compel a partition thereof in the manner provided in sections 25-2170 to 25-21,111.
Source
Laws 1951, c. 72, § 1(1), p. 228.
Annotations
A tenant cannot seek partition of a landlord's property. Dreesen Enters. v. Dreesen, 308 Neb. 433, 954 N.W.2d 874 (2021).
Partition, if well founded, is an absolute right, and a conservator need not obtain a license to so act. Cofer v. Perkins, 199 Neb. 327, 258 N.W.2d 807 (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).
Action to partition mineral interests in lands was authorized by this section. Phillips v. Phillips, 170 Neb. 733, 104 N.W.2d 52 (1960).
Lessee for term of years holding an entire interest in lease has no leasehold to partition. Hartman v. Drake, 166 Neb. 87, 87 N.W.2d 895 (1958).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2171 - Complaint; unknown owners or interests; allegations.

25-2171.
Complaint; unknown owners or interests; allegations.
If the number of shares or interests is known, but the owners thereof are unknown, or if there are, or are supposed to be, any interests which are unknown, contingent or doubtful, these facts shall be set forth in the complaint with reasonable certainty.
Source
R.S.1867, Code § 803, p. 538;
R.S.1913, § 8286;
C.S.1922, § 9239;
C.S.1929, § 20-2171;
R.S.1943, § 25-2171;
Laws 2002, LB 876, § 42.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2172 - Parties; lienholders.

25-2172.
Parties; lienholders.
Creditors having a specific or general lien upon all or any portion of the property may or may not be made parties, at the option of the plaintiff.
Source
R.S.1867, Code § 804, p. 538;
R.S.1913, § 8287;
C.S.1922, § 9240;
C.S.1929, § 20-2172;
R.S.1943, § 25-2172.
Annotations
Plaintiff in partition suit may at his option make holder of tax lien a party to the suit. Fairley v. Kemper, 174 Neb. 565, 118 N.W.2d 754 (1962).
Creditor having a specific or a general lien upon property being partitioned may or may not be made a party at the option of the plaintiff. Majerus v. Santo, 143 Neb. 774, 10 N.W.2d 608 (1943).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2173 - Liens upon undivided interests; lien for costs paramount.

25-2173.
Liens upon undivided interests; lien for costs paramount.
If the lien is upon one or more undivided interests of any of the parties, it shall, after partition or sale, remain a charge upon those particular interests or the proceeds thereof. But the due proportion of costs is a charge upon those interests paramount to all other liens.
Source
R.S.1867, Code § 805, p. 538;
R.S.1913, § 8288;
C.S.1922, § 9241;
C.S.1929, § 20-2173;
R.S.1943, § 25-2173.
Annotations
Proceeds are not exempt as personalty against judgment lien. First Nat. Bank of Albion v. Snyder, 2 Neb. Unof. 136, 96 N.W. 285 (1901).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2174 - Answer; contents.

25-2174.
Answer; contents.
The answers of the defendants must state, among other things, the amount and nature of their respective interests. They may deny the interest of any of the plaintiffs, and by supplemental pleading, if necessary, may deny the interests of any of the other defendants.
Source
R.S.1867, Code § 806, p. 538;
R.S.1913, § 8289;
C.S.1922, § 9242;
C.S.1929, § 20-2174;
R.S.1943, § 25-2174.
Annotations
Where plaintiff bases action on legal title, defendant may set up in answer equitable defense thereto. Lynch v. Lynch, 18 Neb. 586, 26 N.W. 390 (1886).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2176 - Trial; costs.

25-2176.
Trial; costs.
Issues may thereupon be joined and tried between any of the contesting parties, the question of costs on such issues being regulated between the contestants agreeably to the principles applicable to other cases.
Source
R.S.1867, Code § 808, p. 538;
R.S.1913, § 8291;
C.S.1922, § 9244;
C.S.1929, § 20-2176;
R.S.1943, § 25-2176.
Annotations
Issues may be joined and trial had between any of contesting parties to the suit. Fairley v. Kemper, 174 Neb. 565, 118 N.W.2d 754 (1962).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2177 - Trial; proof.

25-2177.
Trial; proof.
Each of the parties appearing, whether as plaintiff or defendant, must exhibit his documentary proof of title, if he has any, and must file the same, or copies thereof, with the clerk.
Source
R.S.1867, Code § 809, p. 539;
R.S.1913, § 8292;
C.S.1922, § 9245;
C.S.1929, § 20-2177;
R.S.1943, § 25-2177.
Cross References
Abstracts of title, when used as evidence, see section 25-1292.
Annotations
Method of proving claims of both plaintiffs and defendants is provided. Fairley v. Kemper, 174 Neb. 565, 118 N.W.2d 754 (1962).
In partition suit, each party must exhibit his documentary proof of title. Frankenberger v. Holm, 154 Neb. 80, 46 N.W.2d 901 (1951).
Filing documentary evidence is not jurisdictional. Kazebeer v. Nunemaker, 82 Neb. 732, 118 N.W. 646 (1908).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2178 - Pleadings; when taken as true.

25-2178.
Pleadings; when taken as true.
If the statements in the complaint are not denied in the answer or contradicted by the documentary proof exhibited, they shall be taken as true.
Source
R.S.1867, Code § 810, p. 539;
R.S.1913, § 8293;
C.S.1922, § 9246;
C.S.1929, § 20-2178;
R.S.1943, § 25-2178;
Laws 2002, LB 876, § 43.
Annotations
Uncontroverted statements in petition and answer will be taken as true. Fairley v. Kemper, 174 Neb. 565, 118 N.W.2d 754 (1962).
Court should first enter judgment confirming shares before determining whether or not partition is practicable. Burke v. Cunningham, 42 Neb. 645, 60 N.W. 903 (1894).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2179 - Judgment.

25-2179.
Judgment.
After all the shares and interests of the parties have been settled in any of the methods aforesaid, judgment shall be rendered confirming those shares and interests, and directing partition to be made accordingly.
Source
R.S.1867, Code § 811, p. 539;
R.S.1913, § 8294;
C.S.1922, § 9247;
C.S.1929, § 20-2179;
R.S.1943, § 25-2179.
Annotations
In enacting section 25-1315, the Legislature did not amend the partition statutes or attempt to change the effect of our prior jurisprudence. Both before and after the adoption of section 25-1315, this section characterized the settlement of all ownership rights as a "judgment" and our case law characterizes the order as a final order. Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, 889 N.W.2d 825 (2017).
The language in Peterson v. Damoude, 95 Neb. 469, 145 N.W. 847 (1914), concerning the appealability of orders in a partition action, harmonizes the final order language of section 25-1902 with the partition procedure mandated by this section. Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, 889 N.W.2d 825 (2017).
An affirmative judgment in favor of a cross-petitioner on a tax sale certificate can be obtained in a partition suit. Fairley v. Kemper, 174 Neb. 565, 118 N.W.2d 754 (1962).
Where partition suit is amicable and for benefit of all parties, court may allow a reasonable attorney's fee to be paid by parties in proportion to their interests. Mabry v. Mudd, 132 Neb. 610, 272 N.W. 574 (1937).
When partition has been ordered, no appeal lies until same has been effected and confirmed. Peterson v. Damoude, 98 Neb. 370, 152 N.W. 786 (1915); Peterson v. Damoude, 95 Neb. 469, 145 N.W. 847 (1914).
Judgment fixing shares is a final judgment and is res judicata of the interests of the parties. Staats v. Wilson, 76 Neb. 204, 107 N.W. 230 (1906).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2180 - Referee or referees; appointment; duty.

25-2180.
Referee or referees; appointment; duty.
Upon entering such judgment the court shall appoint a referee or referees, not exceeding three in number, to make partition into the requisite number of shares.
Source
R.S.1867, Code § 812, p. 539;
Laws 1905, c. 178, § 1, p. 671;
R.S.1913, § 8295;
C.S.1922, § 9248;
C.S.1929, § 20-2180;
R.S.1943, § 25-2180.
Annotations
Under this section, the court is required to appoint at least one referee. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).
Referee in partition is an officer of the court. Knouse v. Knouse, 157 Neb. 748, 61 N.W.2d 388 (1953).
Referee in partition is an officer of the court subject to its lawful orders and directions. Siekert v. Soester, 144 Neb. 321, 13 N.W.2d 139 (1944).
Referees in first instance determine practicability of partition. Burke v. Cunningham, 42 Neb. 645, 60 N.W. 903 (1894).
Court may also appoint referee to make accounting. Mills v. Miller, 3 Neb. 87 (1873).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2181 - Report of referees.

25-2181.
Report of referees.
If it appears to the referee or referees that partition cannot be made without great prejudice to the owners, they shall so report to the court.
Source
R.S.1867, Code § 814, p. 539;
R.S.1913, § 8296;
C.S.1922, § 9249;
C.S.1929, § 20-2181;
R.S.1943, § 25-2181.
Annotations
Under this section, the referee is required to report to the court if it appears to the referee that partition in kind cannot be made without great prejudice to the owners. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).
When the evidence showed that only two of four tracts were contiguous, the tracts had different uses, the tracts would not typically be offered for sale together and would not bring a higher price if sold together, and another party proposed an in-kind distribution that came close to dividing the land into equal thirds based on appraised value, a plaintiff for partition failed to show partition in kind would result in great prejudice to the owners and did not rebut the presumption that real estate should be distributed in kind. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).
Presumption is in favor of partition in kind; however, the character and location of the property, or the amount of interest sought to be assigned, or both, may be such that it will be presumed that partition in kind cannot be made. Nordhausen v. Christner, 215 Neb. 367, 338 N.W.2d 754 (1983).
As between partition in kind or sale of land, partition in kind is preferred. Phillips v. Phillips, 170 Neb. 733, 104 N.W.2d 52 (1960).
The effect of this section, in connection with section 25-2183, is to make uncertain whether property should be partitioned in kind or sold and the proceeds distributed, until a judicial determination of that issue is made by the court. Trowbridge v. Donner, 152 Neb. 206, 40 N.W.2d 655 (1950).
Effect of this section, together with section authorizing court to order sale if satisfied with report, is to make uncertain whether land will be physically divided or sold. Heiser v. Brehm, 117 Neb. 472, 221 N.W. 97 (1928).
Impracticability of partition does not render action adversary; attorney's fees should be allowed if amicable. Smith v. Palmer, 91 Neb. 796, 137 N.W. 843 (1912).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2182 - Referees; special allotments; when directed.

25-2182.
Referees; special allotments; when directed.
For good and sufficient reasons appearing to the court, the referee or referees may be directed to allot particular portions of the land to particular individuals. In other cases the shares must be made as nearly as possible of equal value.
Source
R.S.1867, Code § 813, p. 539;
R.S.1913, § 8297;
C.S.1922, § 9250;
C.S.1929, § 20-2182;
R.S.1943, § 25-2182.
Annotations
The trial court is given power to direct the referee to allot particular portions of land to particular individuals, and unless so allotted the shares may be drawn by lot. Trowbridge v. Donner, 152 Neb. 206, 40 N.W.2d 655 (1950).
Court may allot particular portions to particular individuals. McClave v. McClave, 60 Neb. 464, 83 N.W. 668 (1900).
Court may award compensation or charge land where incapable of fair division. Lynch v. Lynch, 18 Neb. 586, 26 N.W. 390 (1886).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2183 - Sale; order; place held.

25-2183.
Sale; order; place held.
If satisfied with such report the court shall cause an order to be entered directing the referee or referees to sell the premises so situated, and shall also fix the place and terms of sale. The sale may be held at any place in the county in which the action is brought, or if there is land situated in two or more counties, sale may be had in any county in which any part of the real estate is situated.
Source
R.S.1867, Code § 815, p. 539;
R.S.1913, § 8298;
Laws 1917, c. 142, § 1, p. 328;
C.S.1922, § 9251;
C.S.1929, § 20-2183;
R.S.1943, § 25-2183;
Laws 1949, c. 58, § 1, p. 169.
Annotations
The effect of this section, in connection with section 25-2181, is to make uncertain whether property should be partitioned in kind or sold and the proceeds distributed, until a judicial determination of that issue is made by the court. Trowbridge v. Donner, 152 Neb. 206, 40 N.W.2d 655 (1950).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2184 - Referees; bond; conditions; further security.

25-2184.
Referees; bond; conditions; further security.
Before proceeding to sell, the referee or referees shall each give security, to be fixed by the court and to be approved by the clerk of said court or the judge thereof, conditioned for the faithful discharge of his duties. At any time thereafter the court may require further and better security.
Source
R.S.1867, Code § 816, p. 539;
R.S.1913, § 8299;
Laws 1917, c. 141, § 1, p. 327;
C.S.1922, § 9252;
C.S.1929, § 20-2184;
R.S.1943, § 25-2184.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2185 - Sale of property; notice; procedure.

25-2185.
Sale of property; notice; procedure.
The same notice of sale shall be given as when lands are sold on execution by the sheriff, and the sale shall be conducted in like manner, except as to place of sale.
Source
R.S.1867, Code § 817, p. 539;
R.S.1913, § 8300;
Laws 1917, c. 142, § 1, p. 328;
C.S.1922, § 9253;
C.S.1929, § 20-2185;
R.S.1943, § 25-2185.
Cross References
Provisions for sale of property under execution, see sections 25-1527 to 25-1541.
Annotations
Appraisement is unnecessary. Schick v. Whitcomb, 68 Neb. 784, 94 N.W. 1023 (1903).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2186 - Sale of property; report of referee.

25-2186.
Sale of property; report of referee.
After completing said sale, the referee or referees must report their proceedings to the court, with a description of the different parcels of land sold to each purchaser, and the price bid therefor, which report shall be filed with the clerk.
Source
R.S.1867, Code § 818, p. 539;
R.S.1913, § 8301;
C.S.1922, § 9254;
C.S.1929, § 20-2186;
R.S.1943, § 25-2186.
Annotations
Sale may be made prior to report. Schick v. Whitcomb, 68 Neb. 784, 94 N.W. 1023 (1903).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2187 - Encumbrances; referee; appointment; report; appeal.

25-2187.
Encumbrances; referee; appointment; report; appeal.
If deemed advisable, the court may appoint a referee to inquire into the nature and amount of encumbrances, and report accordingly. From that report an appeal lies to the court.
Source
R.S.1867, Code § 820, p. 539;
R.S.1913, § 8303;
C.S.1922, § 9255;
C.S.1929, § 20-2187;
R.S.1943, § 25-2187.
Annotations
Referee may inquire into and report as to the nature and the amount of encumbrances. Hartman v. Drake, 166 Neb. 87, 87 N.W.2d 895 (1958).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2188 - Encumbrances; duty of referee; notice of hearing.

25-2188.
Encumbrances; duty of referee; notice of hearing.
The referee shall give the parties interested at least five days' notice of the time and place when he will receive proof of the amount of such encumbrances.
Source
R.S.1867, Code § 821, p. 540;
R.S.1913, § 8304;
C.S.1922, § 9256;
C.S.1929, § 20-2188;
R.S.1943, § 25-2188.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2189 - Encumbrances; evidence before referee.

25-2189.
Encumbrances; evidence before referee.
In taking such proof he may receive, with other evidence, the affidavit of the parties interested.
Source
R.S.1867, Code § 822, p. 540;
R.S.1913, § 8305;
C.S.1922, § 9257;
C.S.1929, § 20-2189;
R.S.1943, § 25-2189.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2190 - Encumbrances; payment with consent of owner.

25-2190.
Encumbrances; payment with consent of owner.
If any encumbrance is ascertained to exist, the proceeds of the sale of that portion, after the payment of costs, or so much thereof as is necessary, shall, if the owner consents, be paid over to the encumbrancer.
Source
R.S.1867, Code § 823, p. 540;
R.S.1913, § 8306;
C.S.1922, § 9258;
C.S.1929, § 20-2190;
R.S.1943, § 25-2190.
Annotations
Where there is an encumbrance on a share, proceeds of sale if owner consents may be paid over to encumbrancer. Hartman v. Drake, 166 Neb. 87, 87 N.W.2d 895 (1958).
This section shows legislative intent to permit partition subject to outstanding encumbrance such as a life estate. Baskins v. Krepcik, 153 Neb. 36, 43 N.W.2d 624 (1950).
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).
Widow with life estate cannot compel partition, and demand the value thereof out of proceeds of partition sale, where some remaindermen object. Freeland v. Andersen, 114 Neb. 822, 211 N.W. 167 (1926).
Remaindermen cannot force partition and make life tenant take value of life estate as if it were an encumbrance. Weddingfeld v. Weddingfeld, 109 Neb. 729, 192 N.W. 227 (1923).