182 P. 56 | Cal. Ct. App. | 1919
This is an action to quiet title brought by the successor in interest of an heir against the other heirs and the administrator. Plaintiff claims to have acquired ownership by adverse possession and the suit was commenced under the provisions of section
[1] From the foregoing it appears that at the time of the death of their father in 1876 the defendants herein became vested with title to the property in question as cotenants in ownership with their mother, the mother owning an undivided one-half interest therein and each of the three heirs an undivided one-sixth interest therein. As stated in the case ofPhelps v. Grady,
[3] Therefore, there is no rule of law which prevents a tenant in common who has acquired his title by descent from being divested of his title through adverse possession by his cotenant during the pendency of proceedings in administration. Our supreme court, in the case of Cooley v. Miller Lux,
[4] As regards the title by adverse possession, it is true that possession of the land by a cotenant is not alone a sufficient basis upon which to establish title as against his co-owner. But, in this case, there are other elements such as the making and taking and recording of deeds and mortgages by the cotenant affecting the whole of the property and the unquestioned retaining of all the rents and profits for a period of more than twenty years after the attaining of the majority of the youngest of the defendants and the placing of valuable improvements upon the property, all under a claim of exclusive ownership.
This case, therefore, comes within the rule laid down by our supreme court in the case of Unger v. Mooney,
But under the rule laid down in Blair v. Hazzard, supra, as explained in Phelps v. Grady, supra, the title acquired against the heir or his successor by adverse possession cannot be deemed to divest the administrator of the deceased of his power and duty to proceed with and conclude the administration of the estate. To the extent, therefore, that the judgment seeks to declare that the defendant administrator has no interest in the property herein which is still a part of the estate, it is erroneous.
The judgment may, therefore, be modified so as to provide that the right, title, and interest of the plaintiff herein is subject only to the right of the defendant administrator to proceed with and conclude the administration of said estate, and, as so modified herein, the judgment is affirmed.
Hart, J., and Burnett, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on May 30, 1919, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 26, 1919.
Angellotti, C. J., Shaw, J., Wilbur, J., and Olney, J., being all the Justices present, concurred. *34