171 P. 945 | Cal. | 1918
This case was transferred to the district court of appeal of the first district for consideration and decision, and in due time that court rendered its decision affirming the judgment, upon an opinion by Mr. Justice Kerrigan. Upon petition of appellant to this court that decision was vacated and the case was transferred here for a rehearing. After further consideration we have reached the conclusion that the opinion of Mr. Justice Kerrigan and the judgment of the district court thereon was correct.
The principal point urged in the petition for rehearing was that, inasmuch as section 685 of the Code of Civil Procedure *732 authorizes the superior court to issue a writ of execution for possession upon a judgment in ejectment after the lapse of five years from its entry, it must of necessity follow that the defendant in such judgment cannot, in the meantime, gain a title to the land by adverse possession against the judgment plaintiff. This conclusion does not necessarily follow. An adverse claim of title to the land may be asserted by the defendant as well against the plaintiff in such judgment as against any other person. The essence of an adverse claim of title is that it is made against the whole world, and there is nothing in the rule which exempts the plaintiff in ejectment from its operation, provided the claim is made against him as well as others. The provision of section 685 allowing execution to issue after five years has no bearing upon the question whether or not the defendant against whom the execution is to be issued has or has not in the meantime acquired a new title to the property which is good against the plaintiff. As stated in the opinion of the district court, that question cannot be litigated upon the motion for execution. This does not mean that such title cannot be acquired, either by a conveyance from a true owner of a title paramount to both the parties in a judgment suit, or by an adverse possession initiated after the entry of the judgment. The opinion of the district court is hereby approved and adopted. It is as follows:
"This is an appeal by defendant from a judgment in an action to quiet title which awarded a part of the land sued for to the plaintiff.
"The facts are briefly as follows: In the year 1880 John Hodgkins purchased a possessory claim to the land described in the amended complaint from one John H. Scott, and took the title to same in the name of Joe Hodgkins, his son, who, with his father and mother, went into immediate possession. In 1896 the Central Pacific Railway Company, defendant's predecessor in interest, claiming legal title to said land, commenced suit against Joe Hodgkins and May Hodgkins, his wife, to recover its possession. Thereafter, and prior to the trial of said action, Joe Hodgkins made a deed, conveying to his mother, Harriet Hodgkins, plaintiff herein, a part of said property designated in the record herein as parcel A, and she at once went into possession of that parcel. On August 25, 1897, after trial, judgment was entered in said *733 suit against Joe Hodgkins declaring that the Central Pacific Railway Company was entitled to possession of the premises. On August 28, 1897, he, together with his wife, served and filed notice of their intention to move for a new trial in that action, whereupon the parties entered into a stipulation by which the Central Pacific Railway Company agreed not to take out execution pending the hearing and determination of the motion for a new trial. Said motion, however, was never brought on for hearing, no appeal from the judgment was taken, and no further proceedings were had in the case until fifteen years after rendition of the judgment, when, in May, 1913, upon motion the stipulation referred to was set aside, the motion for a new trial was dismissed and a writ of possession issued, pursuant to which the sheriff ejected all persons from the land, and this defendant was put in possession as successor in interest of the Central Pacific Railway Company. On May 26, 1913, Joe Hodgkins conveyed to plaintiff herein the land described in parcel B. Subsequently Harriet Hodgkins, plaintiff herein, brought this action to quiet title, claiming title to parcel A by prescription and also by virtue of the deed from her son Joe, made after the commencement of the former action and prior to its hearing and determination; and to the part of the land known as parcel B by deed to her from her son made after the ejectment in May, 1913.
"From the record it further appears that the plaintiff and her grantors and predecessors in interest, for more than fifteen years prior to May, 1915, were in the peaceable, visible, and uninterrupted possession of the property described in the findings; that while so in possession she and her son Joe erected on the respective parcels of land A and B barns, outhouses, and other improvements, inclosed portions of said land with substantial fences, which at all times thereafter they maintained and kept in good order and repair; that they cultivated the land, raising crops and pasturing stock thereon, and generally using the land for the purposes for which it was adapted and for their ordinary purposes; that during the entire period they paid all taxes levied and assessed thereon each year.
"Upon these facts the court found that the plaintiff was the owner and entitled to a portion of the two parcels of land embraced within the description set forth in the amended *734 complaint. It is from that portion of the judgment in favor of the plaintiff that the defendant prosecutes this appeal.
"The Central Pacific Railway Company in the original action failed to file a lis pendens; and the plaintiff in the present action claims that she had no notice, actual or constructive, of the pendency of the suit, and that therefore her claim to parcel A is unaffected by the judgment in that case. Under all the evidence in this case such claim is clearly untenable, and her right to either parcel A or B depends upon the circumstances of the possession thereof after the judgment in the ejectment suit.
"The evidence supports the findings of the court that the possession of both parcels by the plaintiff and her grantors and predecessors was not only open, peaceable, and notorious for the period of over fifteen years, but that it was also adverse and hostile. The character of the possession of the property as hereinbefore described raised the presumption that it was held adversely (Code Civ. Proc., secs. 322-325;Wheatley v. San Pedro etc. Ry. Co.,
"The only point seriously relied upon by the defendant for a reversal of the judgment is the claim that the plaintiff could not have obtained title by adverse possession between the time of the entry of judgment in the former action and the issuance of execution thereon. In other words, defendant asserts that the running of the statute of limitations was suspended from the filing of the action or the entry of judgment therein up to the time when an execution might rightfully be issued. Of course, it is conceded that title to real property cannot be litigated upon an application for a writ of possession (Laudregan v. Peppin,
"In Mabary v. Dollarhide, 98 Mo. 198, 204, [14 Am. St. Rep. 639, 11 S.W. 611], the court said: 'We cannot see how the mere recovery of a judgment in an action of ejectment can suspend the running of the statute of limitations. To have that effect there must be possession under it, or something done to make the defendant's possession subordinate to the plaintiff's title.'
"And in Smith v. Trabue, 1 McLean, 87, [Fed. Cas. No. 13,116], the court declared: 'A judgment in an action of ejectment against a defendant who holds adversely does not of itself suspend the statute of limitations. To do this there must be a change of possession. It is true the judgment fixes the right of entry in the lessor of plaintiff, if he can make entry without force, but if he fails to make his entry, either with or without a writ of possession, the statute of limitations will continue to operate against the right. . . . Nothing short of this will stop the statute.' (See, also,Dupont v. Charleston etc. Bridge Co.,
"Here the court did not find that the property was held by consent of the owner of the legal title nor in subordination *737 to the judgment in the former action; but upon sufficient evidence it found that the property was held adversely to and in denial of the title of the defendant for more than the full statutory period after the judgment became final. We, therefore, hold that the statute is a complete bar to defendant's claim, and that plaintiff's prescriptive title was fully established."
The judgment is affirmed.
Sloss, J., Melvin, J., Richards, J., pro tem., Wilbur, J., Victor E. Shaw, J., pro tem., and Angellotti, C. J., concurred.