91 Cal. 170 | Cal. | 1891
The plaintiffs seek, in this action, partition of a tract of land which belonged to their mother, of which they allege that the defendants are tenants in common with them by reason of conveyances from other heirs of their mother. The land in controversy belonged to Josefa Soto de Stokes, who died intestate September 18, 1855, leaving a husband, James Stokes, and fourteen children surviving her. An act of the legislature was passed March 25, 1857, authorizing her administrator to sell her real estate subject to the approval of the probate court of Monterey County, in which the administration of her estate was pending, and upon such approval to convey the same to the purchaser. March 16, 1858, “ said James Stokes, professing to act under the authority of the said act, and as the administrator of said Josefa, made and entered into a contract with one R. J. Walsh, by the terms whereof he, as administrator of the estate of said Josefa Soto de Stokes, contracted to sell to said Walsh, and said Walsh contracted to buy,” the tract of land described in the complaint, subject to the approval of said probate court. Upon receiving the report of said sale said probate court approved the same, “ and after such approval,.and on the 21st of April, 1858, the said Stokes, still representing himself to be, and professing to act and acting as, administrator of the estate of his said deceased wife, and in his own right, made, executed, and delivered to said R. J. Walsh a deed of conveyance purporting to convey to him the said land in consideration of the sum of $14,376.43.” The said purchase price was the full value of the land at the time of the said sale, and the deed therefor was recorded in the office of the county recorder for Colusa County on the twelfth day of August, 1858. At certain dates thereafter, viz., March 31, 1860, and June 11, 1863, Walsh took deeds purporting to convey the land from persons who had received conveyances
Walsh died testate April 30, 1866, and thereafter, viz., March 12, 1872, the probate court of Colusa County, in which administration of his estate was had, distributed the southerly half of said land to the defendants Joseph L. Chambers and Charles R. Chambers, in accordance with the provisions of his will.
The court also finds that “ during the year 1858 said Walsh inclosed the southerly half of the said land with a good, substantial post and plank fence; and thereafter, up to the time of his death, maintained and kept the
“32. The said E. J. Walsh entered into and took possession of the land purporting to be conveyed to him by the said deed of April 21, 1858, in his own right, and as owner of the entire estate, and not as a tenant in common with the plaintiffs, or any or either of them, or with any other person, and ousted and amoved the plaintiffs, Josephine Winterburn, Lucy Mills, Catherine Sherwood, Louisa Johnson, William Stokes, and Domingo Stokes, and all other persons having or claiming any right, title, or interest in or to such tract of land, or any part thereof, from the possession of said land and every part thereof.
“33. More than five years, to wit, more than six years, elapsed between the time when the youngest of the plaintiffs arrived at majority and the time of the commencement of this action, during all which time the defendants Joseph L. Chambers and Charles E. Chambers had and held, and claimed to hold in their own right absolutely, as the devisees of the said E. J. Walsh, deceased, and under the said decree of distribution made by the probate court of the county of Colusa, all the southerly half of the said land, and were, at the time of the commencement of this action, the owners, in fee, thereof; and all which time the defendant Lewis H. McIntosh had and held, and claimed to hold absolutely in his own right as the grantee of said Walsh, and under mesne conveyances sufficient in form to convey the whole title, all the northerly half of the said land, and
The present action was commenced on the twentieth day of May, 1878, and at the time of its commencement the plaintiffs were of the following ages: Louisa Johnson, forty-seven years; Catherine Sherwood, thirty-four years; Josephine Winterburn, thirty-one years; Lucy Mills, tweuty-eight years; William Stokes, thirty-two years; and Domingo Stokes, through whom the plaintiff Eugene Sherwood claims, thirty-eight years.
As conclusions of law, the court found that by virtue of such ouster and adverse possession the title of the plaintiffs was extinguished and their right of action barred by the statute of limitations. It also found the following as one of its conclusions of law, viz.: “That the said E. J. Walsh, under his deed of April 21, 1858, acquired title to only the undivided one third of the land in his deed described, and became, by operation of law, but without his consent or knowledge, a tenant in common with the children of .the said Josefa Soto de Stokes, deceased, but that by his entry, under said deed, into the absolute and exclusive and adverse possession of said land, and his ouster of all his said co-tenants from the possession thereof, and by the maintenance of such exclusive and adverse possession by said Walsh, his grantees, administrators, devisees, and assigns, openly, notoriously, and continuously, under claim of absolute title for more than five years after each and all the plaintiffs, and each and every of the surviving children of the said Josefa Soto de Stokes, had attained majority, all the right, title, and interest of the said plaintiffs, and of each of them, was extinguished.”
Judgment was entered in favor of the defendants. A motion for a new trial, made by the plaintiffs, was denied, and from the judgment and order denying said motion the plaintiffs have appealed.
The basis of the judgment by the court below is, that the plaintiffs were ousted from the land more than five years prior to the commencement of the action, and that
We cannot agree with counsel for appellants that it was the intention of the court, by its finding of an ouster, in finding 32, above quoted, to limit such finding to an ouster by the mere entry by Walsh under the deed. The court does not, in the finding itself, limit the ouster to the mere entry and claim under the deed, nor does it, after finding such entry and claim, find that he thereby ousted and amoved the plaintiffs; but the ouster is found as a fact distinct from such entry and claim. The court, moreover, in its conclusion of law above quoted, finds that Walsh “by his entry under said deed into the absolute and exclusive and adverse possession of said land, and his ouster of all his co-tenants from the possession thereof, and by the maintenance of such exclusive and adverse possession,” extinguished the title of the plaintiffs. It thus appears that the ouster found by the court does not depend upon the mere entry and claim; that while the entry and claim are elements therein, they do not solely constitute the ouster.
The findings must be read as a whole, and not merely according to their numerical division. Because it may be impracticable to embrace all the facts in a case under a single finding, it does not follow that each fact that is separately found is to be considered distinct and disconnected from all the others. Especially when a fact is the ultimate fact resulting from several others is it improper to limit such conclusion. If the fact found may be sustained by evidence in the case, it must be referred to such evidence for its support, and not limited to the immediate connection in which it is placed in the findings, unless the language in which it is expressed
An ouster of one co-tenant by another is produced by acts of the same character as will produce any other ouster. In either case it is the “ wrongful dispossession or exclusion of a party from real property who is entitled to the possession.” In each case the same kind of possession is required, and it must be taken and held with the same hostile intent. In the case of a dispossession by a stranger, the fact that such stranger takes the actual and exclusive possession of the land is of itself a notice of the character of such possession, and of the intent with which it was done. In the case of the co-tenant, however, the intent with which the possession is taken is not manifested by the mere fact of possession, but must be established either by actual notice or by acts or declarations so open and notorious, and of such a nature, that it may readily be presumed that the co-tenant out of possession is informed thereby of the hostile intent with which the possession is held. It is the intent which determines the character of the possession; but it is essential that this intent be in some mode, either by actual or presumptive notice, directly or indirectly, communicated to the other co-tenant. This intent is not the secret purpose of the occupant, but is the purpose which the acts themselves manifest, and the acts done must be manifested to the person against whom the ouster is directed. It is not necessary that actual notice be shown to have reached the co-tenant, in order to charge him with the effect of the ouster. The ouster must be complete, and it must be found that notice thereof was given; and inasmuch as ouster is the ultimate fact to be found by the court, it is sufficient if it is sustained by the evidence, or is the necessary result from the probative facts which are found. Being a fact to be found from evidence, it is entitled to the same
It appears from the record herein that in March, 1858, Walsh made a contract with the administrator of the estate of Josefa for a purchase of the whole of the land described in the complaint, at its full value, subject to the approval of the probate court of Monterey County; that the sale was approved by said court, and that in pursuance thereof a conveyance was made to him in the succeeding month, and that he paid the whole of the purchase price to the said administrator; that he thereupon immediately took possession of the whole tract of land, and in August following sold to McIntosh the northerly half of the tract at its full value, executed to him a contract of sale therefor, gave him the possession, and thereafter received from him the price for the same; and that McIntosh, upon receiving said contract of sale, took possession of the tract, and thereafter occupied the same as in his own right; that Walsh inclosed the southerly half of the tract with a substantial fence, and occupied and cultivated it openly and exclusively until his death, in 1866; caused it to be surveyed and also to be assessed in his own name, paid all' the taxes thereon, made a testamentary disposition thereof, as well as frequent and open declarations of his purchase and ownership of the entire tract. These acts were sufficient to clearly indicate the intent on his part to claim the entire estate as his own to the exclusion of all other persons, and were also acts of such character and performed with sufficient publicity and notoriety to justify a presumption that they were communicated to and known by the plaintiffs.
The fact that the deed to Walsh was not placed upon record until after he had made his contract of sale with McIntosh, and the entry by McIntosh upon the northern portion of the tract, is immaterial, and it is equally immaterial for the purpose of characterizing his entry, whether the deed was recorded or not. The entry into
After the ouster by Walsh, the adverse possession taken by the defendants under conveyance from him was referable to such ouster, and it was not requisite to find that they had made any additional ouster to that which was to be inferred from the ouster by Walsh, under whom they entered. Their possession under such entry was the adverse holding of a stranger to the title, and not referable to the entry of a co-tenant. Their
It is, however, contended, on behalf of the appellants, that inasmuch as by the terms of the deed from the administrator to Walsh it must have appeared to him that there was thereby conveyed only an undivided interest in the land, his entry must be deemed to have been in accordance with the terms of the deed, and that his acts thereunder, being consistent with such entry, did not manifest any intent to claim the entire ownership. We think, however, that the facts presented by the record do not uphold this claim of the appellants. It may be conceded that the conveyance by Stokes, as administrator, under the authority of the legislative act, was utterly unavailing to transfer to Walsh any title to the lands in controversy, and that the court correctly found that the only interest therein which he obtained by the deed was that which passed by the conveyance of Stokes in his own right, which was in fact the one third which he took as surviving husband of Josefa. The court, however, found that although by operation of law this deed made him only a tenant in common with the children of Josefa, yet such effect of the deed was without his knowledge or consent, and that his entry was of such a character as to operate as an ouster of said chil
We must assume that these findings of fact are sustained by the evidence which was presented at the trial, as the plaintiffs have not, in their bill of exceptions, made any specification of insufficiency in that respect. Upon an appeal, it must be assumed by us that all findings of fact against which the bill of exceptions contains no specification of their being unsupported by the evidence have been correctly found. The fact that there is some evidence in the record bearing upon such finding which is not in itself sufficient to support it cannot be considered. It is only when the finding is directly challenged in this respect that we must assume that all the evidence bearing upon the subject before the court below which would sustain the finding is in the record. If the finding itself has not been objected to, there is no occasion for inserting such evidence in the bill of exceptions, and the respondent is not to be prejudiced by any failure to have it included therein.
The appellants, in their specifications of insufficiency of evidence, do not question the correctness of the foregoing findings of fact, their specification being “ the insufficiency of the evidence to justify the finding of fact that R. J. Walsh entered and took possession of the land purporting to be conveyed to him by said deed of April 21, 1858, in his own right, and as owner of the entire estate, and not as a tenant in common with the plain
The fact that some of the plaintiffs were infants at the time of the entry did not diminish the effect of the ouster. The entry by Walsh, and his subsequent acts under such entry, were not deprived of their hostile character, and did not fail to constitute an ouster, merely because the plaintiffs were at that. time minors. An infant can be ousted from his possession by either a stranger or a co-tenant. The ouster does not depend upon the fact that the notice of the entry with hostile intent has been either understood or comprehended by the disseised, whether such entry be by a stranger or by a co-tenant. If in either case the disseisor should declare to the infant his intent to exclude him from the possession, and should physically remove him from the land, and thereafter hold the same openly and adversely, the ouster would not be suspended until the infant had attained majority, but would be complete at the date of the act and t declaration. The effect which the notice will produce is not the test of its sufficiency, and the same acts and declarations which constitute an ouster apply to an infant as well as to an adult,, whether such notice be actual or pre
The judgment and order denying a new trial are affirmed.
Paterson, J., and Garoutte, J., concurred.
Hearing in Bank denied.