57 Cal. 180 | Cal. | 1881
Ejectment. In his complaint plaintiff alleges that he is the owner “of an undivided one-half interest” of, in, and to the tract of land therein described.
After certain denials, the answer proceeds:
“ Further answering, said complaint, and as a special defense to said action, defendant avers that for more than five years prior to the commencement of said action the defendant, and those through and under whom he claims, holds, and owns, have been in the continuous, actual, open, and notorious and exclusive possession of said premises, holding adversely to the plaintiff’s pretended right or claim, and holding the actual, open, notorious, and exclusive possession of said tract of land and premises, and of every part and portion thereof, adversely to said plaintiff and all comers. Defendant avers, that neither the plaintiff nor his ancestors, predecessors, or grantors, nor any or either of them, was or were, or have been, seized or possessed of the premises sued for, or of any part or portion thereof, within five years next before the commencement of this action.”
No objection has been made to the foregoing as a plea of the Statute of Limitations. Did the Court below find upon the issue thus presented ?
The Court found, in effect, that, prior to the 24th day of September, 1860, and from November 15th, 1859, the plaintiff and one Sanor, grantor of defendant, claimed a right to the possession, and exercised acts of ownership upon a tract of land, including the demanded premises, as tenants in common; that Sanor then, for a valuable consideration by him paid, took and received a deed from one Cocke, whereby the latter remised, released, and quit-claimed to said Sanor all his estate, right, title,
The Court further found, that, on the 3rd of December, 1864, Sanor and wife, by deed, remised, released, and quit-claimed to defendant, for the consideration of $500, all their interest in the land described in the complaint; that on the day of the execution of said deed, Sanor delivered possession of the entire premises to defendant, who has since been in the sole, open, notorious, and exclusive possession of the same, keeping the same inclosed with a good and substantial fence, and receiving to his exclusive use and benefit the entire rents, issues, and profits—“ claiming to be the owner under said deed of the whole thereof.”
Neither of these is a finding that plaintiff was ousted more than five years before the commencement of the action, and that defendant, or defendant and his grantor, had been in adverse possession since the ouster; or a finding that defendant or his grantor was in adverse possession continuously more than five years prior to the commencement of the action; or a finding that defendant for more than five years prevented plaintiff from entering into the enjoyment of the premises in common with himself.
It is not necessary here to decide whether a “-finding ” is suf
The difference between the finding in a special verdict—of an ouster—and of probative facts, which go toward establishing an ouster, was pointed out in Carpentier v. Mendenhall, 28 Cal. 484. It is illustrated in Carpentier v. Webster, 27 Cal. 524, where the occupant refused to let in his co-tenant. In Carpentier v. Gardner, 29 Cal. 160, where it was held that the denial of any title in the co-tenant was evidence of ouster. It has been said that the taking of actual possession of land under a deed which purports to convey the whole thereof, under a belief that it conveys the whole, while in fact it gives title to an undivided portion only, is not an ouster of a tenant in common who owns the other undivided part. (Seaton v. Son, 32 Cal. 481.)
Judgment and order reversed, and cause remanded for anew trial.
Morrison, C. J., Thornton, J., Myrick, J., and Sharp-stein, J., concurred.
Ross, J., concurred in the judgment.