108 P. 278 | Cal. | 1910
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *383 Appeal by defendant from a judgment quieting plaintiff's title to three parcels of land in Alameda County. The evidence is incorporated in a bill of exceptions.
The fifth amended complaint, upon which, with the answer thereto, the action was tried, alleged that on December 23, 1896, plaintiff was seized and possessed of, and ever since has been and now is the owner in fee simple absolute of the lots in controversy; that on December 23, 1896, plaintiff executed and delivered a deed of said land to the defendant, his uncle, with the understanding that said defendant would reconvey the same upon request; that said conveyance was made at the request of defendant, "and for the further reason that the plaintiff at said time was suffering mentally and physically from injuries received some two years prior to said time by a horse falling upon him." It was further alleged that there was no consideration for the deed; that ever since its execution, plaintiff had held possession of said lands against the defendant and the whole world, and for five years had paid all taxes levied and assessed upon said lands, and had "improved and treated said real estate as his own, without a suggestion or an objection from any one in the world." The refusal of the defendant *384 to reconvey on request is averred, as is the fact that he claims an interest in the property adverse to plaintiff, such claim being, as is alleged, without right.
A demurrer to this complaint was overruled. Of the various grounds of demurrer specified, but one, i.e., the want of facts sufficient to constitute a cause of action, is here argued. The contention of appellant is that the plaintiff cannot, by the mere averment of an oral agreement that the title conveyed should be held in trust for him, or be reconveyed to him, overcome the effect of his deed of December, 1896. In the absence of a confidential relation or of facts raising a trust by operation of law — and it is plain that this complaint sets up no such case — a trust cannot be imposed upon the grantee under an absolute deed unless it be declared by a writing. (Feeney v. Howard,
But, independently of every allegation concerning the deed, the complaint contains a statement of all the facts necessary to constitute a cause of action. It avers that plaintiff is the owner and in possession of certain land, that defendant claims an interest therein adverse to plaintiff, and that such claim is without right. Here we have every element of a complaint to quiet title. (Code Civ. Proc., sec. 738.) Furthermore, if we read with these facts the averment that plaintiff made a deed to defendant in 1896, the cause of action is not destroyed. The plaintiff may have acquired a perfect title by adverse possession after the execution of the deed, and, in fact, the complaint undertakes, by separate averments, to set up such acquisition of title.
The court found, in general terms, that "all the allegations *385 and averments of plaintiff's complaint are true." It is objected that this is a finding in favor of the facts alleged in the original, rather than in the fifth amended complaint. We think this suggestion hypercritical. Each of the pleadings in question was a complaint, and the finding should be taken as intended to refer to the complaint on which the case was tried. The answer, mentioned in the same finding, was the answer to that complaint.
There are various specifications of insufficiency of evidence to support findings, but, in view of what we have said concerning the complaint it will appear to be unnecessary to do more than to examine the evidence on the question whether plaintiff acquired a title by adverse possession. As he was not claiming under a written instrument, a judgment, or a decree, the elements necessary to constitute adverse possession are those set out in section
The plaintiff's further evidence, if true, showed that his possession was both hostile and exclusive. It was contradicted by *386 the defendant's witnesses, but, as we have so often said, a conflict of testimony presents a question which is to be answered finally in the trial court.
It is urged that the other requirement of section
The fact that, in one year, the land was sold for delinquent taxes, and subsequently redeemed by plaintiff, did not prevent the acquisition of title by adverse possession. (Owsley v.Matson,
Certain errors in admitting or excluding evidence are specified. The objections, rulings, and exceptions are merely stated in appellant's brief, without any citation of authority or any argument beyond the bald declaration that "in deciding these objections against the defendant the court erred." We do not feel called upon to consider points so presented. (Duncan v. Ramish,
The judgment is affirmed.
Shaw, J., and Angellotti, J., concurred.