## Facts

- Adolph Kresha and Rose M. Kresha were married and co-owned two tracts of nonhomestead land.
- On August 30, 1979, Adolph executed a written lease to their son, Joseph A. Kresha, for a six-year term, without Rose’s consent, knowledge, or authority.
- Rose learned of the lease no later than March 12, 1980.
- On March 18, 1980, Rose filed an action for separate maintenance, which Adolph later converted into a dissolution (divorce) action.
- The dissolution decree awarded the subject tracts to Rose; after Adolph’s appeal was dismissed, a deed conveying the land to Rose was recorded on August 16, 1982.
- On August 26, 1982, Rose notified Joseph that she was terminating the lease; Joseph responded that the lease was valid and he remained in possession.
- On March 2, 1983, Rose served Joseph another notice to vacate; Joseph again refused to leave.
- On March 14, 1983, Rose filed a forcible entry and detainer (FED) action in county court to recover possession.
- The county court dismissed the FED action, and the district court affirmed the dismissal.
- Rose appealed to the Nebraska Supreme Court.

## Issues

1. May one cotenant, without the other cotenant’s consent, lease his undivided interest in co-owned nonhomestead land to a third party?
2. If the nonleasing spouse later receives sole title to the land through a dissolution decree and deed, does she take the former cotenant’s interest subject to the existing lease so that FED is unavailable to remove the tenant?

## Decision

- The Nebraska Supreme Court affirmed the district court’s judgment affirming dismissal of Rose’s FED action.
- The court held that a cotenant can lease his own undivided interest to a third person without the other cotenant’s consent; such a lease operates on the leasing cotenant’s share.
- When Rose later acquired Adolph’s former interest through the dissolution decree and deed, she took that interest subject to Joseph’s existing leasehold rights created by Adolph.
- Because Joseph’s possession was based on a valid leasehold derived from Adolph’s interest, Rose could not use the summary FED procedure to obtain immediate possession by treating Joseph as a wrongful occupant.
- The court also stated that it would not reverse a correct result merely because a lower court offered imperfect reasoning for it.

## Legal Principles

- A cotenant may convey or encumber only the cotenant’s own undivided interest, including by lease to a third party.
- A lease executed by fewer than all cotenants does not, by itself, bind the nonleasing cotenant’s undivided interest unless the nonleasing cotenant assents or ratifies.
- A later transferee of the leasing cotenant’s interest (including a spouse who receives title via dissolution and deed) takes that interest subject to leasehold rights previously granted from that interest.
- Forcible entry and detainer is a summary possession remedy and is not suited to dispossess a person in peaceable possession under a facially valid leasehold tied to a cotenant’s transferred interest.
- An appellate court will affirm a correct judgment even if the trial court’s stated reasons were wrong.

## Conclusion

Because Adolph could lease his undivided ownership interest to Joseph and Rose later acquired Adolph’s former interest subject to that lease, Joseph’s continued possession was not wrongful for purposes of forcible entry and detainer, and the dismissal of Rose’s FED action was affirmed.


Kresha v. Kresha, 371 N.W.2d 280 (1985)