Pacheco v. Wilson

18 P. 597 | Ariz. | 1888

WRIGHT, C. J.

This was a complaint by the plaintiff, in which he alleges that he is the owner of, and in possession of, certain lands described, and seeks to quiet his title against a claim of defendant. On the trial he offered no paper title. He showed that, in 1869, one Herran and wife occupied the premises. That, in September, Befugio Pacheco went into possession of said premises, and he died in September, 1873, leaving him surviving his widow, Paula, who was made executrix, and five children, Nabor, Manuel, Befugio, Jesus Mateo, and plaintiff. That he .bequeathed all his property to his wife, and this property was described as the “Field Las Pelas.” His wife took possessioh of the premises, and occupied the same until her death, December 12, 1884. That at her death she was executrix aforesaid, and the estate remained unsettled. After her death, Mateo and Nabor were appointed administrators of her estate, and with will, annexed of the estate of Befugio aforesaid, and through them both estates were in process of administration. Said Mateo, administrator, leased said premises to one Lee Ding, who paid rent to the administrators, $140 per annum. The probate court, by decree of partition, set these premises apart to plaintiff as his part of the estate, as heir of his father and his mother; and Sotero Buelas was appointed his guardian; and said guardian executed a lease of the premises to Lee Ding for a term of years, at an annual rental of $140 per annum, who accounted to said guardian, and continued to occupy under said premises under said lease.

The possession of Lee Ding, as tenant of plaintiff’s guardian, which continued until after plaintiff’s majority, was the possession of plaintiff, who claimed as heir of his mother, who claimed under the will of her husband. This is a cl aim and color of title, and such a possession is an adverse possession, and was sufficient to sustain a complaint to quiet title, and is within the authority of Frost v. Spitley, 121 U. S. 552, 7 Sup. Ct. Rep. 1129, and the eases there cited. A person in possession adverse, and under a claim and color of title, may maintain this action, even though his title be equitable and not at law, and a legal title less than a fee. The court below, therefore, erred in dismissing this bill of complaint. The plaintiff made out .a case which called upon the defendant to show his title. The title of defendant was a deed from Nabor to defendant, and a deed from Herran in 1882. The devisee of Befugio had held adversely under color of title from 1873, under his will; hence limitations began to run from that date, and made good the title to those claiming under Refugio. The title of plaintiff in the premises should be quieted, and a decree rendered accordingly. ,The cause is reversed and remanded.

Barnes and Porter, JJ., concur.