30 Cal. 408 | Cal. | 1866
Lead Opinion
This is an action of ejectment for a lot of land situated at the corner of Mission and Ninth streets, in the City of San Francisco, in the block lying between Mission and Howrard streets and Ninth and Tenth streets, which was known in former years as Lot Number Three, of the Mission Addition. The action was commenced on the 28th of July, 1864. The defendants’ answer was a traverse of all the material allegations of the complaint, in addition to which it is averred that the defendant Rollins was at the time of answering the owner in fee simple of the demanded premises (excepting a small portion thereof to which he made no claim,) and had been
Both parties were dissatisfied with the finding and judgment, and each moved for a new trial, on grounds distinctly assigned, and which will be noticed as occasion may require. The respective motions for new trial were overruled, and the parties respectively appealed from the order and judgment.
To maintain the issue on his part the plaintiff offered and gave in evidence a deed executed by George C. Sindle, bearing date November 16th, 1853, and recorded the day following, which purported to convey to Joseph Lamson an undivided one third of said Block Number Three. Also, a quitclaim deed, executed by said Sindle on the same day and recorded on the day following to George C. Moon, for an undivided third of said block, and a like quitclaim deed executed by said Sindle to Brown, Pratt and Tracy for the remaining undivided one third of said block. The plaintiff also gave in evidence a power of attorney executed under seal by F. P. Tracy, one of the grantees named in the last mentioned deed to James Pratt, another of such grantees, bearing date the 24th of January, 1854, in which he authorized and empowered Pratt that “ in case it shall in the judgment of the said James Pratt and Harvey S. Brown, my partners, be necessary and right for my - interest to sell any portion or all the real estate I own in California, then the said James Pratt is authorized to sell the same
The plaintiff also gave in evidence divers deeds of conveyance by which if. appeared that the plaintiff had acquired before this action was commenced all the right, title and interest which Lamson had in the premises in controversy after the execution of the partition deed.
The power of attorney from Tracy to Pratt did not in our judgment authorize the attorney to make partition of lands in which Tracy had an interest as tenant in common. He >vas authorized under certain circumstances to sell any portion or all the lands of the constituent, and the same to convey, and generally to do whatever in the premises was necessary to carry the power granted into execution, even though the matters to be done should require more special authority than was comprised by the language employed. But, notwithstanding, the power of attorney when understood according to its language and obvious intent, did not authorize the attorney to join in the partition in the name of his principal, we think there can be no question as to the power of the principal himself to give effect and confirmation to the acts of the attorney by his own acts and conduct of solemn significance, such as the execution of deeds of conveyance, which necessarily recognized the partition as of legal validity. It may be assumed that Pratt exceeded his power when he made partition with the others, claiming to be tenants in common of the block, as the attorney in fact of Tracy, but what he did, though in excess of the power granted, it was proposed to prove his principal ratified and confirmed by acting in reference to and treating the partition as made by authority. In
Upon the hypothesis that Lamson, Moon and Brown, Pratt and Tracy were tenants in common of Block Three at the date of the partition deed, we are of .opinion the evidence offered by the plaintiff, and which the Court excluded, was admissible.
The plaintiff claimed the right to the possession of the demanded premises as the successor in interest of Lamson, Moon and Brown, Pratt and Tracy, who, he claimed, were in possession of said block as the grantees of Sindle under deeds bearing date in November, 1853. To establish that Sindle was in the possession of the block in 1853, Andrew Thompson was called as a witness, who testified that in that year Sindle and one Nichols put a brush fence around said block. Evidence was offered of a judgment rendered in March, 1854, in favor of Sindle as plaintiff against Peter McKenna and Daniel O’Connor, as defendants, for the recovery of the possession of
Lamson testified that he and Moon and Brown, Pratt and Tracy went into the possession of said block in 1854, and put a fence around it, consisting of posts, to which were-fastened two rails on which to place pickets, but that no pickets were placed on the rails. He further testified that the fence was not sufficient to keep out small cattle, but that they considered it sufficient to possess the land ; that the fence was broken down in different places in the fall of 1854, and he (the witness) put it up, soon after which he went to sea, at which time the fence was down in several places, and that he could not say it was ever repaired so as to keep up a continuous fence around the block. One F. D. Cottle testified that in March, 1854, there was a fence of the character described by Lamson around the block, and that it was up entirely around the block
In 1854 McKenna lived upon and was in possession of a portion of the premises in controversy. The portion occupied by McKenna was twenty-five feet front, on Mission street, running back to a depth of one hundred and thirty-seven and one half feet, and was inclosed by a substantial fence, and had a dwelling house upon it. In February, 1855, McKenna sold and conveyed the lot on which he resided to William Wainwright, who afterward held it in possession by a tenant and in 1861 conveyed the same, by deed, to the defendant Rollins, who thereupon entered into the possession, and afterward, in the same year, removed the fence surrounding the McKenna lot and inclosed the whole premises in controversy, and removed the house to the portion thereof adjoining the ahgle formed by the intersection of Mission and Ninth streets.
Wainwright and another witness called by the defendants gave evidence tending to show that the fence inclosing the demanded premises was in 1854 and 1855 much broken, and insufficient to protect the property from the ingress of cattle. Wainwright said portions of the fence might have stood up in 1855, but he thought it was pretty well demolished in 1854. That in those years no one except McKenna occupied the lot until the tenant of the witness occupied it.
It was stipulated between the parties at the trial that the land is within the line of the Van Ness Ordinance in the City of San Francisco, and that the claim of*said city for said lands had been confirmed in the Circuit Court of the United States, but when confirmed it does not appear.
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First—It does not show or tend to show that plaintiff or any one under whom he claimed was seized or possessed of the demanded premises, or any part thereof, at the time the defendants entered and became possessed thereof, or at any time since.
Second—It does not show or tend to show that the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of said premises, or any part thereof, at any time within five years next before the commencement of the action.
The evidence in support of the plaintiff’s alleged right seems to us to fall short of that which is necessary and sufficient to constitute prima facie evidence of title to land by actual possession at common law, or under the provisions of the Statute of Limitations or the Van Ness Ordinance. The inclosure relied on was not at any time a substantial inclosure, so that thereby the plaintiff or his grantors could maintain that his or their possession was adverse in the common law sense of the term. If the plaintiff relied upon the deeds of conveyance from Sindle to Lamson, Moon, Brown, Pratt and Tracy, and the deeds of conveyance from them down to himself, then he must be held to have failed to show that they or any one of them, or he himself, ever entered into the possession or occupation of any portion of the block under claim of title. If he relied on the Van Ness Ordinance, then it does not appear that the grantees of Sindle, or tenants of such grantees, were in the actual possession, of the property as required by that ordinance on the 1st of January, 1855, and thence next ensuing to the time df its passage on the 20th of June of j;he same year.
As the parties respectively desire a new trial, and as we are satisfied another trial will be necessary to determine the matters in controversy, we order and direct that the order denying the new trial and the judgment be reversed, and that the cause be
Hr. Justice Shafteb expressed no opinion.
Rehearing
Evidence of the execution of a lease was offered at the trial by the plaintiff. The lease itself was not produced, it appearing that it had been destroyed by the lessee. The evidence was objected to on the ground that the lease had been destroyed by the party whose interest it was to preserve it, but the objection was overruled. In our opinion in this case, we said we were not- satisfied that the testimony of the witness respecting the lease was sufficient to prove the relation of landlord and tenant between the persons alleged to be the lessor and lessee, and we further said the evidence respecting the lease should have been excluded, as no effort wa's made to prove the contents of the destroyed instrument.
We are now asked to grant a rehearing because of the expression that the evidence “ should have been excluded, as no effort was made to prove the contents of the lost instrument, inasmuch as the objection of the defendant’s counsel was not on that ground.” It will be observed that before using the language above quoted we said we were not satisfied the testimony of the witness respecting the lease was sufficient to prove the relation of landlord and tenant, etc. This goes to the extent of holding that the .evidence respecting the lease was insufficient to establish the relation of landlord and tenant between Moon and McKenna. This evidence seems to have been materially important for the plaintiff. Without it, it may be, the plaintiff would not have recovered anything. The defendants made the point on the motion for a new trial that the evidence did not show or tend to show any right in the plaintiff to recover any portion of the premises. . -The testimony respecting the lease being received, and being, as it stood, insufficient, its effect was objected to on
The petitioner’s counsel has discussed at length under what circumstances secondary evidence may be admitted to prove the contents of lost or destroyed instruments. The case, as it is before us, requires no expression of an opinion on the subject. We have endeavored to settle all the questions necessary to be decided upon the record of the case in this Court. When the cause is again tried each party will be permitted to produce such evidence as he may he able, material to the issue on his part, unembarrassed, we apprehend, by anything contained in the opinion of the Court heretofore delivered.
Rehearing denied.