107 Cal. 102 | Cal. | 1895
Action brought to quiet title. The answer denies plaintiffs’ ownership and avers title in one of the defendants, John B. Cronan, under whom the other defendant holds.
Plaintiff recovered judgment, the court finding the allegations of the complaint true, and all the allegations of the answer untrue.
Plaintiffs’ sole claim of title is from adverse possession.
The lot in question is known as lot 2, and is one of many lots comprising about ten acres, which belonged at one time to the City Extension Homestead Association, and which, with other lands, were subdivided by the association prior to 1870.
Lot 2 was conveyed to John Tenney by the association prior to 1873, and the others to different owners. Lot 2 was one hundred feet square.
In November, 1873, Michael Millett entered into possession of the ten-acre tract and other lands under a lease for three years, executed by ten owners of lots in the tract, or in some portion of the lands formerly owned by the association, for the lease included other lands besides the ten-acre tract, which last-mentioned tract, however, was inclosed by itself.
The lessors did not claim undivided interests in the demised premises, but each owned the land which had been conveyed to him by the association. The lease was in writing, and purported to lease to Millett their
For the first three years Millett paid rent as stipulated in his lease; after that he still retained possession, but paid no rent.
In July, 1882, Millett obtained a deed for the lot from one Jason Wight, who had purchased the property at a tax sale, although it does not appear that a tax deed was ever executed to him; Millett recorded this deed, and then—as plaintiff contends—commenced to assert title to the land and to hold the same adversely to all the world.
Appellants contend that as Millett entered into possession as a tenant, he cannot initiate an adverse possession without first surrendering possession to his landlord; and further, that, if he can do so, Tenney and his grantees should have some notice of the change in the manner in which Millett was holding before his possession could become adverse to Tenney, so as to set the statute of limitations in operation.
The rule that it is necessary to surrender possession and again enter, before the possession can become adverse, obtains only where the person claiming to hold adversely was put into possession by the owner, or has at least held possession under such owner. No such relation ever existed between Millett and Tenney.
The lease from McNear and others did not render Millett’s possession of lot 2 less hostile to Tenney. Had Tenney sued Millett for trespass in entering upon it, the lease would have constituted no defense; on the contrary, if it is properly construed as including lot 2 and thereby authorizing Millett to enter into possession of it as tenant, it would have made the lessors joint trespassers with Millett. The only effect of the lease affecting this case was—conceding that it included lot 2—to
As the relation of landlord and tenant never existed between Tenney or his grantees and Millett, section 326 of the Code of Civil Procedure has no application to this case.
It was not contended that Millett acquired any title through the deed from Wight, but simply that it brought him within the provisions of section 323 of the Code of Civil Procedure. It seems sufficient for that purpose. (Packard v. Moss, 68 Cal. 123; Wilson v. Atkinson, 77 Cal. 485; 11 Am. St. Rep. 299.)
The possession of Millett was sufficient to establish an adverse holding under the statute, and there was no conflict in the evidence. As to Tenney, Millett had all the time been a trespasser, and his possession was sufficient notice of an adverse claim. There is some claim that McNear, when he made the lease as one of the lessors, was the agent for all who had owned lots in the homestead, and was acting for Tenney in making the lease. There is really no evidence which tends to show this, and the terms of the lease disprove the claim.
If the law be as announced in this opinion there is nothing whatever in the affidavits used on the hearing of the motion for a new trial. The evidence set out in them would not have tended to prove a defense.
The judgment and order are affirmed.
Harrison, J., Garoutte, J., Van Fleet, J., Beatty, C. J., and Henshaw, J., concurred.
