94 Cal. 241 | Cal. | 1892
This is an action of ejectment. Judgment went for the defendants, and this appeal is prosecuted from such judgment and the order denying plaintiffs’ motion for a new trial.
The facts of the case are set forth in detail in Gage v. Downey, 79 Cal. 140, when the cause was previously •before this court, and it will not be necessary to recite them here. The decision of the court at that time settled the rights of the parties to a large portion of the lands involved in this litigation, and then remanded the cause for a new trial as to a one-fourth interest of the land included in the Portilla patent, such one fourth being the interest claimed by plaintiffs as having passed to the children of John Rains at the time of his decease, by virtue of being community property, and he dying intestate. At the subsequent trial of this cause in the lower court, that court very properly confined itself to an examination of the single question presented to it for investigation; .and the only matter which will oc
It is very much to be regretted that the former decission of this case by this court (Gage v. Downey, 79 Cal. 140) is not more explicit and more satisfactory as to some matters there considered and determined.
At the first trial it was stipulated (and the stipulation is in the present record) that the Moss league was afterward embraced in the Portilla patent, and that “ all the balance of the land included in the Portilla grant was set off to Warner as a homestead, together with the land included in the patent of the United States to J. J. Warner.” It will thus be seen that under this stipulation we have all the land included in the Warner patent and all the land included in the Portilla patent, except the Moss league, set apart to Warner as a homestead.
At the time of the death of John Rains the title to the Warner grant stood in his name. Subsequent thereto, the widow, Mrs. Rains, brought an action in San Bernardino County against the administrator of the estate and the children, claiming said land as her separate property.
This court, in its previous opinion, construing the complaint in that case, said: “ The language used amounts to stating that the right involved and claimed here is the right to the tract set apart as a homestead described in the pleadings”; and again: “The title to the land was in controversy as between the personal representative and the children of John Rains on the one hand, and his widow on the other, and it was determined in favor of the widow.” The question as to the effect of the San Bernardino decree is further considered at length by the court, but we have sufficiently noticed it for present purposes. We then have the stipulation of counsel that the Warner homestead included all the land embraced in both patents save the Moss league; and we have the decision of this court that all the land included in the Warner homestead was adjudged to be the separate property of Mrs. Rains (the widow) by the San Bernardino decree, which would only leave the title to
As already suggested, the lower court having explicitly followed the directions of this court given upon the previous appeal, and having thereby limited the investigation at the last trial to the status of the one-fourth interest in the Portilla grant claimed to have passed to the children of John Rains at his decease, it would seem that its determination as to such matter could properly be the only subject for review upon this appeal. Such being the fact, whatever interest the plaintiff Cornelia De Foley now claims by virtue of her deed from her mother, Mrs. Rains Carillo, dated June 6,1883, is a matter entirely immaterial at this time, for it involves an
Again, counsel have at great length devoted themselves in their argument to the proper construction of the deed from Mrs. Rains Carillo to defendants’ grantors, which deed is dated December 3, 1868. We think the matter of minor importance, the investigation being limited, as already suggested. If the consideration of plaintiff Foley’s title under the deed from her mother was the matter at issue, then the construction of this deed from Mrs. Carillo Rains to defendants’ grantors would be very material, as showing that at the date of the Foley deed Mrs. Carillo Rains had no interest in the land, having previously parted with it under her deed as aforesaid, but that question is not before us. Plaintiffs must recover upon the strength of their own title, and the presence or absence of title in defendants is not material, and whatever interest the plaintiffs have here is such interest as was not cut off by but survived the San Bernardino decree. We are entirely satisfied with the previous decision of this court as to the effect of the Santa Clara judgment, to wit, that it resulted only in setting aside certain deeds, etc., and thereby placing Mrs. Rains Carillo in the same position she found herself immediately subsequent to the date of the San Bernardino decree, and the deed made by the administrator thereunder. Consequently these plaintiffs now have all the interests of the children of John Rains, deceased (unless since lost by operation of law), to this one fourth of the land included in the Portilla patent, unless the San Bernardino decree adjudicated it against them. If the plaintiff’s interests survived that decree, Mrs. Rains Carillo’s deed to defendants’ grantors did not carry it. It would seem, therefore, the effect and scope of this decree is a matter of great importance to a proper solution of the merits of the pending appeal.
Whatever rights the plaintiffs have in this land came to them as heirs at law of John Rains; for whatever interest he may have had in this property at the time of
That was an action brought by Mrs. Rains against Dunlap, the administrator of the estate of John Rains, deceased, and the children of John Rains, for the purpose of obtaining a decree that certain property claimed by Dunlap as administrator of said estate was her separate property. The complaint alleged that on the 29th of November, 1858, John Rains loaned to Jonathan J, Warner the sum of eighteen hundred dollars, and as a security took a mortgage from Warner and wife to that certain tract of land situated in the county of San Diego, California, known as the Valle de San José and Agua Caliente, and being the lands granted to José Antonio Pico by Juan B. Alvarado, governor of the department of the Californias, by deed of grant of June 8, 1840, and to John J. Warner, by Manuel Michel tor en a, governor as aforesaid, by deed of grant of date November 28,1844, the property and right included in said mortgage being the land set off and partitioned as a homestead by commissioners for that purpose in the case of J. Mora Moss v. Jonathan J. Warner and Anita Gale Warner. The complaint further alleged that said money loaned was her separate property, that said mortgage was foreclosed, and said Rains bought the property at sheriff’s sale for the amount of the judgment, and received the deed therefor in his own name. After trial the court rendered the following judgment: —
There can be no question as to the extent of the land' included in the Warner homestead, for it is a stipulated fact in the case that the Warner homestead embraced all the land included in both the Warner and Portilla patents except the Moss league. Consequently, to the extent of the homestead description found in the decree, we know exactly what land was there vested in the widow.
The description of the land included in the deed from the sheriff to Bains consists of “that certain tract of land known as the Valle de San José and Agua Caliente, and being the land granted to José Antonio Pico by Juan J. Alvarado, governor of the department of the Californias, by deed of grant of date January 8, 1840, and to John J. Warner by Manuel Micheltorena, governor aforesaid, by deed of grant of date November 28, 1844.” It will be observed that the description of the land in the sheriff’s deed is the same as the third description set out in the decree, except that in addition it includes the land covered by the Moss league. The Agua Caliente described the land granted to Pico January 8, 1840, and appears to have comprised the northern portion of the Valle de San José. The expediente forwarded to Governor-General Micheltorena by Warner contained his application for the place known by name as “ Valle de San José,” “surrounded by the mountain, and which is vacant.” Upon November 28, 1844, said Micheltorena, by his order, recited: “ Whereas Juan José Warner, Mexican by naturalization, has petitioned for his own personal benefit and that of his family the land known by the name Valle de San José, bounded on the east by the entrance into San Felipe and the mountain, on the west by the mountain and cañón Aguanga, and on the north bounded by the mountain, and the boundaries on the south being the Carrizo and the mountain, .... I have resolved to grant him the said land,
We conclude that the evidence is entirely convincing that “Warner’s ranch” and the “Valle de San José” refer to the same tract of land, which tract comprises the Moss league and the Warner homestead, and which therefore include all the land embraced within the Warner and Portilla patents, and that the San Bernardino decree included all the land covered by the Warner homestead. We leave this branch of the case by quoting with approval from the opinion of Mr. Justice Thornton upon the previous appeal (79 Cal. 153): 11 The complaint [referring to the San Bernardino case] intended to challenge John Rains’s right and title to this land, and to bring them to judicature, and this we think was done by the pleader, so that the parties claiming under Rains might deny by their answer her right to the land, and offer in evidence any title, whether -derived from Portilla or any one else, to the land, which would show the land to be a part of his estate. The title to the land was in controversy in this suit, as between the per
It is a stipulated fact that defendants have title to the undivided one half of the land included in the Portilla patent, and therefore defendants would have title to an undivided one half of the Moss league. The remaining one half of the Moss league, being in Rains at the time of his death, descended to his heirs as follows: One half thereof, or twenty-five one hundredths of the entire league, to Mrs. Rains. There were five children. Isaac died a minor, intestate and without issue, pending administration, and his interest passed to the brothers and sisters in equal shares. (Estate of Donahue, 36 Cal. 329.) This would vest twenty-five one hundredths in the four children, which interest is now represented by the plaintiffs here.
Section 1573 of the Code of Civil Procedure provides: “No action for the recovery of any estate sold by an executor or administrator, under the provisions of this chapter, can be maintained by any heir or other person claiming under the decedent, unless it be commenced within three years next after the settlement of the final account
The Portilla patent is dated January 10, 1880; the defendant the Merchants' Exchange Bank was made a party to the action by an amended complaint filed October 20, 1885, more than five years subsequent to the issuance of the patent, and the trial court found that, as to the defendant bank, the plaintiff Foley was barred from any right of recovery, by reason of an adverse possession of five years. The defendants sued in the original complaint were John G. Downey, and John Doe, Richard Roe, etc., fictitious defendants. Almost two years after the filing of the complaint, a summons was served on the Merchants’ Exchange Bank. Subsequently the service of this summons, upon motion of the bank, was quashed, and the complaint was then amended by substituting said bank as defendant in lieu of John Doe, Richard Roe, etc. Some five years later, plaintiffs moved to set aside the original order quashing the summons. It is unnecessary to pass upon these proceedings in detail; it is sufficient to say we believe the original action of the court in quashing the service of summons justified, and are satisfied that the-said bank was not a party to the action until October 20, 1885. Conceding these facts, the evidence is insufficient to support the finding of adverse possession. At the time the defendant bank obtained an interest in this laud from the grantees of Downey, the plaintiff Foley was a co-tenant of Downey, and subsequently she became a co-tenant of the bank. The bank was never in the actual possession of the land, and for its adverse possession relies upon the possession of its co-tenant Downey; but this claim would be equally open to plaintiff Foley. There is no evidence that Downey was acting for the bank in his claim of adverse possession, and especially no evidence that plaintiff
The judgment and order are affirmed as to the land embraced in the said one fourth of the Portilla patent, except as to the twenty-five one hundredths of- the Moss league, and as to said interest the judgment and order are reversed, and the cause remanded for a new trial.
Harrison, J., McFarland, J., Sharpstein, J., and Paterson, J., concurred.
Rehearing denied.