Lovell v. Frost

44 Cal. 471 | Cal. | 1872

By the Court, Rhodes, J.:

The only question in this case, is whether the plaintiff’s intestate acquired title to the premises by adverse possession, under the operation of the Statute of Limitations. The premises are a part of the Santa Teresa Rancho, and the survey of the rancho having been confirmed, the premises were set off, in an action of partition, to the defendant. The Court did not expressly find whether the plaintiff’s intestate did or did not hold the premises adversely during the period of five years, but as the judgment was for the defendant, it will be presumed that the finding was against the plaintiff on that issue. The Court, however, found certain facts, among which is the fact that, “ pending the action of partition (which was before the five years had run under the Statute of Limitations of 1863) plaintiff’s intestate, in his lifetime, inquired of the defendant whether he would not rent or sell the land to him if it should be allotted to him, the defendant, in the partition of the ranch, and the defendant promised him that he would.’’ There is evidence in the record to sustain this finding, at least all except that the defendant promised that he would sell or rent the land, but that fact is not material to the question. The offer to purchase or rent the property, and not merely to purchase an outstanding or adverse claim or title to quiet his possession or protect himself from litigation, as in Cannon v. Stockman, 36 Cal. 538, amounted to a clear and unequivocal recognition of the defendant’s title. Such recognition proves that the plaintiff’s intestate did not, at that time, claim the title as against the defendant, and the recognition having been given before the full period of the statute had run, the plaintiff is precluded from relying on the statute, as vesting in his intestate the title as against the defendant; for in order to secure that position his possession must not only have been adverse to the defendant, but he must also have claimed the title as against the defendant, during the entire statutory period.

Some of the findings are not sustained by the evidence, but they need not be considered, for they are not material, and have no bearing on the issue of adverse possession.

Judgment and order affirmed.

Mr. Chief Justice Wallace did not express an opinion.