95 Cal. 48 | Cal. | 1892
Lead Opinion
Action to quiet title. The plaintiff recovered judgment in the superior court, and the defendants appeal. The plaintiff claims the land in controversy by virtue of a deed made to her by the defendant J. P. Murry, in June, 1871, in which the land conveyed to her is described as “situate, lying, and being in Porterville, county of Tulare, state of California, and bounded and particularly described as follows, to wit: on the north, two hundred and forty feet on Mill Street; on the east, one hundred and ten feet on a thirty-foot alley; on the south, two hundred and forty feet on an alley; on the west, one hundred and ten feet by a thirty-foot alley; and being all of lots Nos. one, two, three, and four, all of block No. eight, as per' plat of Johnson & Murry’s addition to the town of Porterville, Tulare County, California.”
The defendant Martha Murry is the wife of plaintiff’s grantor, and bases her claim to the land in dispute upon a deed made to her by her husband subsequently to the execution of the above-mentioned deed to plaintiff.
1. Plaintiff’s deed is not upon its face void for uncertainty, as claimed by appellants, and parol evidence was properly admitted for the purpose of identifying the plat offered in evidence by her as the one referred to in such deed. It was incumbent upon plaintiff to produce, or in the event of its loss or destruction, give secondary
2. It is claimed by appellant that the map is upon its face void for uncertainty, and that it furnishes no starting-point or data from which a surveyor or any other person could locate the particular lots or block described in the deed, and that the court should have so held, as a matter of law, and excluded it as evidence. We do not think the court committed any error in overruling this objection of appellant. It is true that no field-notes accompanied it, nor are there upon it any signs or letters to indicate the different points of the compass or
3. The court found that plaintiff is the owner of block 8 of Johnson & Murry’s addition to the town of Porterville, and that it is more particularly described as “commencing at a point on the south boundary line of Mill Street, in said town of Porterville, thirty feet east of the northeast corner of lot five, in block twenty, thence running easterly along said boundary line of Mill Street two hundred and forty feet; thence southerly at right angles one hundred and ten feet; thence westerly at right angles two hundred and forty feet; thence northerly one hundred and ten feet to the place of begining”; and thereupon entered a judgment quieting the title of plaintiff to the land thus described. The appellants contend that this finding is against the evidence, and it seems to us that in so far as it states that
4. The plaintiff contends, however, that under the pleadings the fact is admitted that block 8, of Johnson & Murry’s addition to the town of Porterville, is also correctly described by the specific metes and bounds given in the judgment of the court, and that for this reason she was not required to prove the fact. We do not so construe the pleadings. The complaint, after alleging plaintiff’s ownership of block 8, as marked on the plat of Johnson & Murry’s addition to the town of Porterville, proceeds by way of recital to state that said block is particularly described according to certain specific metes and bounds, 'which are the same as those mentioned by the court below in its findings and judgment. The answer, without taking any special issue with the recital contained in the complaint as to the boundaries of the block claimed by plaintiff, simply
Judgment reversed, and cause remanded for a new trial.
Harrison, J., Garoutte, J., Paterson, J., and Beatty, C. J., concurred.
Sharpstein, J., dissented.
Dissenting Opinion
I dissent, and adhere to the former opinion.
The following is the opinion above referred to by Mr. Justice McFarland, rendered in Bank on the 12th of September, 1890:
This is a suit to quiet title to a parcel of land described in the complaint as follows: “ Situate in the county of Tulare, state of California, described as follows, to wit: On the north, two hundred and forty feet on Mill Street; on the east, one hundred and ten feet on a thirty-foot alley; on the south, two hundred
1. The superior, court did not err in overruling the demurrer to the complaint. The two descriptions of the land therein contained are not inconsistent with each other, and, together, are sufficient to identify the land by reference to the recorded plats of the town of Porterville, if there are such plats agreeing with each other and conforming to such description in the delineation of Mill Street, block 20, and the lots in question.
2. The court did not err in admitting in evidence plaintiff’s deed, exhibit No. 1. The plaintiff in this action is. the grantee of the defendant J. P. Murry, whose wife and co-defendant is his subsequent grantee, The deed, exhibit No. 1, offered in evidence by the plaintiff, was the defendants’ deed of the premises in controversy, dated and acknowledged June 20, 1871, and containing the following description of the premises conveyed: “All those certain lots, pieces, or parcels of land situate, lying, and being in the town of Porter-ville, county of Tulare, state of California, and bounded and particularly described as follows, to wit: On the north, two hundred and forty (240) feet on Mill Street;
3. The court did not err in admitting the plat, exhibit No. 2. It is true that this plat contained nothing in itself by which it could be identified or located. But the defendant, by his deed of June 20, 1871, admitted that there was then existing a plat of Johnson & Murry’s addition, and evidence was offered by the plaintiff that as early as 1873 the defendant had this plat, exhibit No. 2, on the ground, and that it was exhibited as the plat of Johnson & Murry’s addition. It seems never to have been recorded, and there may be some doubt as to whether it is the same plat with reference to which the deed was made; but the evidence offered in connection with it was sufficient to authorize its admission in evidence. By his deed, the defendant admitted that there was a plat of Johnson & Murry’s addition, and within two years of that admission he is shown to be in possession of this plat, and exhibiting it as the plat of the addition. As against him, and those claiming under him, and in favor of his grantee, this is certainly sufficient, prima facie, to identify the plat. If there was another and different plat to which the deed in fact referred, he was called upon to show it. He made no such attempt, but rested upon the denial that he had ever made the deed, or any plat. ,It was shown, however, that he had made a prior deed for other lots on Mill Street, and in the same addition; and the finding
4. Most of the remaining objections relied on by appellants relate to the admission of oral testimony as to the actual location of the lots delineated on the plat, exhibit 2. This plat shows various things on its face, — streets and alleys; blocks subdivided into lots; a county road; Mill Street, Main Street, Water Street, and other streets; a river; plats marked as D. Murphey’s land, J. P. Murry’s land, Johnson & Keeney, etc. It is certainly not impossible that witnesses acquainted with these features of the town and vicinity of Porterville might locate the addition with reference to the main town of Porterville, and testimony for that purpose was clearly admissible. It was not necessary for the plaintiff to show that there had been an actual survey of the streets, lots, and blocks of the addition, and stakes set out on the ground. Her conveyance was of lots delineated on a plat; and if she could prove a plat showing lots and streets corresponding with the description in the deed, and other things by which, with the aid of oral testimony, the lots could be located on the ground, this was competent and sufficient as against her grantor. We find no error in the record.