11 F. Cas. 640 | U.S. Circuit Court for the District of California | 1874
(after stating the facts). One defense relied on by defendants is the statute of limitations. Stephen Harris was the party disseized, the adverse possession under a paper title in all respects regular on its face, having commenced several years before his death. The statute of limitations of 1863 is the one applicable. St. [Cal.] 1863, p. 325. Under this statute the time limited began to run, at least from the date of the act of congress of July 1, 1864, to settle land titles in California, at which time the title of the city of San Francisco to the municipal lands within the limits embraced by the Van Ness ordinance, became final. 13 Stat. 333, § 5.
In Montgomery v. Bevans [Case No. 9,735], Mr. Justice Field says; “Now, though the title of the city, as stated in the previous opinion, is Mexican in its origin, and was recognized and established by the decree of the circuit court of the United States, as modified by the act of congress of March 8, 1866 [14 Stat. 4], yet all adverse interest of the government to the lands within the corporate limits of 1851, being released by the act of July 1, 1864, the titles conferred by the Van Ness ordinance became perfect legal titles. The act operated upon such titles as effectually as a patent would have done.” As the titles derived through tthe city thus became final, the title of the city itself must have become final, and the plaintiffs claim title through the city and the Van Ness ordinance.
The statute, therefore, began to run during the lifetime of Stephen Harris, and more than five years before the commencement of this action. The question under the statute then-is, did the statute, having once commenced to run, continue to run notwithstanding the death of Harris, and the vesting of the title and right of action in his minor children, or was the running of the statute suspended during the minority and consequent disability of the plaintiffs? In other words, is the case within the exception of the sixteenth section of the statute, allowing those who are under disability five years after the disability ceases within which to commence the action? Under all the English statutes, it has long been settled that the exception only applies where the right of action, first accrues during the disability — that when the statute once begins to run, it continues to run, and overrides all disabilities of every kind subsequently arising. Ang. Lim. §§ 477-479; Walden v. Heirs of Gratz, 1 Wheat. [14 U. S.] 296; Mercer’s Lessees v. Seldon, 1 How. [42 U. S.] 37; Roberts v. Moore [Case No. 11,905]; Den v. Richards, 3 J. S. Green [15 N. J. Law] 347; Stowel v. Zouch, 1 Plow. 353; Doe v. Jones, 4 Term R. 300. The construction of the New York statute is settled in the same way. Demarest v. Wynkoop, 3 Johns. Ch. 129; Fleming v. Griswold, 3 Hill, 85; Becker v. Van Valkenburgh, 29 Barb. 324, 325.
But counsel for plaintiffs insist that the statute of California is different from the English and New York statutes, and that the decisions under those statutes, consequently, have no application. In this they are mistaken. Section sixteen of the statute of California, as amended in 1803, so far as it touches this question, is an exact transcript of section sixteen of the statute of New York, from which it was taken. It is as follows: “If the person entitled to commence any action for the recovery of real property * * * be at the time, such title shall first descend or accrue, either. First, within the age of majority,” etc. St. 1863, 320. The language of the statute of New York is: “If any per-, son entitled to commence any action in this article specified * * * be at the time, such title shall first descend or accrue, either,” etc. Ang. Lim. Append. 62, § 16. It will be seen that the language is identical. The language itself is clear, independent of authority; it is, if any person “entitled” to commence an action be at the time, “such title”— that is, such title, or right to commence the action, referring to the word “entitled,” in the language of the first part of the clause— “shall first descend or accrue.” It only excepts the case when the right or title to commence the action “first descends” or “first accrues.” It excepts only once, and that “the first.” Now, in this case, the right or title to commence the action “first accrued” to Harris, the ancestor, and not to the plaintiffs. So, also, our statute is substantially a transcript of the English statute of 21 James I, which reads: “If any person * * * that is or shall be entitled to such writ (that is to commence such action), * * * or that hath or shall have such right or title of entry, be or shall be at the time of said right or title first descended, accrued, come or fallen within the age of twenty-one,” etc. Ang. Lim. §§ 477-479, and Id. Append. 4, § 2. The language in all these statutes is subsequently identical, and must receive the same con, struction. The construction had long been thoroughly settled by judicial decisions when this provision was adopted in this state, and such construction must be presumed to have been adopted with the language. Besides, I think the construction correct.
It is further insisted that the defendants had not, personally, been in possession during the entire statutory periods, and that they cannot connect their possession with the possession of their grantors in order to make up the full term. There is nothing in this point. Harris was disseized under a claim of title, as early as 1864, and the disseizors transferred the possession acquired by them with their title to their grantees. The possession of the defendants is the same as that of their grantors — the possession and the interest were continuous. This principle has neen long and repeatedly recognized by the courts of California. San Francisco v. Fulde, 37 Cal. 349. The conclusion attained renders it unnecessary to consider the other interesting points made by defendants. It results that the bar of the statute attached before the commencement of this action, and the defendants are entitled to judgment and costs. Let judgment be entered accordingly.
