21 P. 725 | Cal. | 1889
Action to quiet title to certain land in the town of Berkeley. Both parties claim through one John Mathews, in whom the title stood of record until August 13, 1880, when he conveyed to the defendant, who was his son in law. The plaintiff’s position is that, prior to the conveyance to the defendant, John Mathews had conveyed to his brother, Peter Mathews, through whom she claims. The trial court gave judgment for the plaintiff, and the defendant appeals. Several points are made by the learned counsel for the appellant, but we deem it sufficient to notice the following:
1. It is contended that the complaint does not support the judgment. The complaint alleges that the plaintiff was the owner and in possession of the property, while the findings are that the plaintiff was the owner, but that the defendant was in possession; and the judgment is that the plaintiff’s title be quieted, and that the defendant be removed from possession. The findings and judgment, therefore, so far as the
2. It is argued that the findings do not show that the legal title was in plaintiff’s testator. It was alleged, however, that the plaintiff is “the owner in fee” of the property, and the finding is in the same language. The allegation that the plaintiff is the owner of the property is of an ultimate fact: Payne v. Treadwell, 16 Cal. 242; Garwood v. Hastings, 38 Cal. 217; Ferrer v. Insurance Co., 47 Cal. 431; Miller v. Brigham, 50 Cal. 615; Rough v. Simmons, 65 Cal. 227, 3 Pac. 804; Thompson v. Spray, 72 Cal. 534,14 Pac. 182; Heeser v. Miller, 77 Cal. 192, 19 Pac. 375; Souter v. Maguire, 78 CaL 543, 21 Pac. 183. The findings are sufficient if they follow the language of the pleadings (Hihn v. Peck, 30 Cal. 286), or if they make a definite reference to the pleadings, as has been held in numerous cases. Hence the finding as to the ownership in fee is sufficient, and shows that the legal title was in the plaintiff : Murphy v. Bennett, 68 Cal. 528, 9 Pac. 738; McLeran v. Benton, 73 Cal. 329, 2 Am. St. Rep. 814, 14 Pac. 879. And its force is not destroyed by the finding of certain probative facts tending to show that the legal title is in the defendant. It may be conceded that where the probative facts found are necessarily inconsistent with the finding of the ultimate fact, the latter may be treated as a mere conclusion. But where the ultimate fact inferred does not necessarily result from the probative facts found, these latter are not sufficient as a finding, taken by themselves (Emmal v. Webb, 36 Cal. 204; Biddel
3. It is urged that there is no evidence that John Mathews ever conveyed the property to his brother Peter, except certain declarations of John to the general effect that he had done so; and that the admission of such declarations against defendant’s objections was erroneous. There was no direct evidence of the conveyance in question, and we think it possible that the admission of said declarations was error: See Thompson v. Lynch, 29 Cal. 191; Tompkins v. Crane, 50 Cal. 480. But, assuming this to be so, we think that the error was immaterial, because, upon the undisputed facts of the case, it must be presumed that such a conveyance was made. A presumption may supply the place of direct evidence; and, if not controverted, a court or jury is bound to find in accordance therewith: Code Civ. Proc., sec. 1961; Leviston v. Ryan, 75 Cal. 294, 17 Pac. 239; Speegle v. Leese, 51 Cal. 415. The question, then, is whether upon the facts shown by the record a presumption arises of a conveyance from John to Peter Mathews; and we think that it does arise from the long continued possession of the plaintiff’s predecessors in interest, and their open and notorious acts of ownership over the property. “Possession,” says Angell in his work on Limitation, “by the law of England and of this country, or quasi possession, as the case may be, is prima facie evidence of property and of a seisin in fee. The longer the continuance of the possession, and the absence of the disturbance of it, the greater is the length to which courts of justice will go in supporting
The doctrine as to presumption of grants is usually applied in eases of easements. But it is not confined to such cases. In the language of Story, J., delivering the opinion in Ricard v. Williams, 7 Wheat. 109, 5 L. Ed. 410: “A grant of land may as well be presumed as a grant of a fishery, or of common, or of a way. Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an,.existing title in, the party in possession.” And the doctrine was applied as to the land itself in a recent and well-considered case in the supreme court of the United States, in which it was distinctly held that the presumption was not a mere inference of fact—in other words, that it was not necessary for the court or jury to believe that a conveyance was in fact executed—the court, per Field, J., saying: “It is sufficient if the evidence leads to the conclusion that the conveyance might have been executed, and that its existence would be a solution of the difficulties arising from its nonexecution” (Fletcher v. Fuller, 120 U. S. 547, 30 L. Ed. 762, 7 Sup. Ct. Rep. 667), and the authorities fully sustain this proposition.
What period, then, is sufficient to raise the presumption? From the nature of the case, there ought to be no fixed and absolute period: See 120 U. S. 550, 30 L. Ed. 764, 7 Sup. Ct. Rep. 675. Each case is to be governed largely by its own circumstances. But there are certain analogies which may aid in arriving at a conclusion. In the case of easements, the period usually adopted in the older states is twenty years, which was in analogy to the statute of limitations. In this regard Bronson, J., delivering the opinion of the court of. errors, said: “The modern doctrine of presuming a right by grant or otherwise to easements and incorporeal hereditaments,
In California the general statute of limitations for actions concerning real property is five years. We are not at present prepared to say that the presumption of a grant would usually be raised after so short a period in cases where the statute did not apply. It is not necessary to express an opinion upon that point, and we express none. But the fact that the period of the statute of limitations has been shortened is not ground for lengthening the period usually accepted in other states as sufficient to raise the presumption of a grant; nor is the fact that the country is comparatively new, and titles correspondingly unstable, a reason for dispensing with safeguards preserved in older communities. We think, therefore, that uninterrupted possession of land for twenty years or thereabouts, under proper conditions, is sufficient to raise a presumption of a grant, where that is required to make out the occupant’s title.
The undisputed facts bring the case within this principle. Peter Mathews took possession of the property in 1861, and he and his successors in interest continued in the open and notorious possession, exercising acts of ownership and control, until the ouster by the defendant in 1881, a period of about twenty years. During the time of his possession Peter Mathews claimed the property as his own. He regularly and annually cultivated it, raising the usual crops for his own use and benefit, and paid all the taxes: See, in this regard, 120 U. S. 553-555, 30 L. Ed. 765, 7 Sup. Ct. Rep. 677, 678. After eleven years he sold and conveyed to others, who in turn took and kept possession, improved the property by laying it out in lots, opening streets, planting trees, etc., and paid all the taxes. After five years they conveyed the property to the plaintiff’s testator, who continued in possession, exercising
It is quite true that the presumption is rebuttable. But we see nothing in the record which rebuts it. The fact that Peter originally entered under a verbal agreement of purchase from John does not make against it: See 120 U. S. 545, 546, 30 L. Ed. 762, 7 Sup. Ct. Rep. 673. In view of the other facts, it increases the probability that a deed was subsequently made. Nor does the fact that there was no record of such a deed overcome the presumption. Aside from other reasons, it was in evidence that at the time in question “it was a very common thing to find some deed, in a deraignment of title, not recorded. People were very careless, and they had been prior to that, about recording their deeds. ’ ’ Nor do we see anything in the circumstances adverted to by the appellant’s counsel which overcomes the presumption.
4. The defendant was not a bona fide purchaser for value. Counsel do not lay stress upon this aspect of the case; and we deem it sufficient to say in the first place that the defense is not set up in the answer: Eversdon v. Mayhew, 65 Cal. 167, 3 Pac. 641. The answer denies notice, but it does not assert, either affirmatively or negatively, that the defendant was a purchaser for value. Nor is there any evidence (other than the presumption of consideration from the writing) that he paid anything for the deed. In the next place, he admits that he knew that his grantor was not in possession, and that he knew that Peter had conveyed the property as if it was his own. These circumstances were sufficient to put him on inquiry. Yet he says in his evidence: “I did not go to see the people who were occupying the ground before the deed was made to me by John Mathews, nor did I ask them any
We concur: Belcher, C. C.; Foote, C.
For the reasons given in the foregoing opinion the judgment is modified by striking out the part relating to the recovery of the possession by the plaintiff, and that as modified it and the order denying a new trial stand affirmed, without costs of appeal to either party.