
    Otis A. Williams v. Daniel B. Daughetee, appellee, C. F. Smith, appellant.
    Filed June 30, 1904.
    No. 13,507.
    Action: Title to Land: Proof. In an action to try title to land against one in possession, when tile issues are substantially tbe same as in tbe ordinary action of ejectment, the plaintiff must recover, if at all, upon the strength of his own title, and not because of the weakness of that of his adversary.
    Appeal from the district court for Antelope county: John F. Boyd, Judge.
    
      Affirmed.
    
    
      Jackson & Williams, for appellant.
    
      E. D. Kilbourne, contra.
    
   Ames, C.

TJbis action was begun by Williams against the unknown heirs and devisees of one Robert Howell, and Daughetee and Smith, to foreclose a tax lien. The record title was in Howell, and Daughetee was in possession claiming title. There was no resistance to the tax lien and a decree of foreclosure thereof was rendered as prayed, but issues were made up on a cross-petition and answer between Daughetee and Smith, the latter claiming to have acquired the title of Howell by an executor’s deed. The issues between the parties were thus substantially the same as they would have been in an action of ejectment, by Smith, as plaintiff!, to recover title and possession.

It is elementary that in such an action the plaintiff must recover, if at all, on the strength of his own title, and not because of the weakness of that of his adversary. Smith traced his title from the United States to one Henry Brown. Then follows a deed properly executed by Biown, but naming no grantee, and an instrument in the form of a deed to Smith, as grantee, executed by one Robert H. Morey, who describes himself as executor of the last will and testament of Robert Howell, late of Tioga county, New York, deceased; but there is no proof of the death of Howell, nor exemplification of a probate of his will either in New York or in Nebraska, and nothing therefore to establish that Smith has any title or interest in the land, and nothing entitling him to ask the court to inquire into the rightfulness of the possession of his adversary.

The district court rendered a judgment quieting title in Daughetee as against Smith, and the latter appealed. It is recommended that the judgment be affirmed.

Letton and Oldham, CC., concur.

By the Court:

For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be

Affirmed.  