71 Cal. 124 | Cal. | 1886
There was no evidence of an actual adverse possession by defendant of any part of the premises described in the complaint. The finding against the defendant on his plea of the statute of limitation was proper.
To the cross-complaint of the defendant the plaintiff pleaded in bar sections 343 and 338 of the Code of Civil Procedure.
For all purposes necessarily involved in the disposition of this case it may be conceded that defendant is entitled to a decree against the plaintiff—charging him as trustee of the legal title for defendant’s benefit—if the defendant would have been entitled to a like decree against Minor, the grantor of plaintiff, had Minor not parted with his title.
The defendant’s cause of action against plaintiff, if any he has had, arose, at the latest, August 13, 1877, when the commissioner of the general land-office adjudged (in the language of appellant’s brief) that defendant “had the better right to pre-empt the land and that Minor had acquired his patent by fraud and perjury.” That was more than five years before the present action was commenced, and nearly six years before the defendant herein filed his cross-complaint.
If the cross-complaint be treated as a bill for relief on
Whether, therefore, the four years’ limitation of section 343, or the three years’ limitation of 338 of the Code of Civil Procedure applies, the cause of action set forth in the cross-complaint was barred.
Judgment and order affirmed.
