McGrath v. Wallace

Fox, J.

The action is to quiet title, accompanied with a prayer for possession, the complaint alleging that defendants are in possession, claiming an interest in the property, but without right. Judgment for plaintiff, from which, and an order denying a motion for new trial, defendants appeal. Defendant Mary A. Wallace became the owner of the property in fee, April 23,1862. In 1865 the property became delinquent for taxes. Suit was brought under the statute then in force for the recovery thereof, resulting in a judgment and order of sale. At the sale Eli Mayo became the purchaser. The court finds that these proceedings were insufficient to divest the title of Mary A. Wallace. But under these proceedings, and a writ of assistance issued therein, Mayo was put into possession in August, 1865, and “ from that time until March, 1878 (except for a short space of time during the latter part of 1875 and the first of 1876, when John H. Beeves had possession of the front portion of said property), said Eli Mayo had the open, notorious, actual, continuous, and exclusive possession and use of said property, claiming to own it as against the whole world. On March 28, 1878, Mayo conveyed the property to plaintiff, who entered into possession thereof, and continued in the open, notorious, actual, continuous, and exclusive possession and use thereof, claiming to own the same, until about January, 1883, when the defendants ousted her.” This quotation is from the findings. This action was commenced in August, 1883.

Even if it be true, as matter of law, that the proceedings culminating in the sale for taxes in 1865 were insufficient in law to divest the title of the defendant Wallace, they did culminate in a judgment and decree of court, ordering a sale of the property, followed by a sale, a failure to redeem, and in due time a sheriff’s deed and a writ of assistance, under which the purchaser was put into possession. He entered under color of title, claiming to be the owner, and bis subsequent continuous possession, of the character found by the court, was sufficient to give him perfect title, unless there was some other fact the existence of which defeated the running of the statute of limitations in his favor. The court finds that Mary Wallace was, and continued to be, a minor until May 2, 1875. The statute therefore did not commence to run in favor of Mayo until that time, but it did commence to run in favor of himself and his grantee at that time, and nearly eight years elapsed after that before the possession thus acquired, claimed, and held was interrupted by the defendants, as appears from the finding. But this finding is attacked on the ground that it is not supported by the evidence. In addition to what is already quoted, the findings further show that on May 6, 1876, Mary A. Wallace conveyed the property to Theodore Le Roy, who began an action against John H. Reeves, as defendant, in the circuit court of the United States, for the possession of said lot. According to the preceding finding, Reeves was then in possession of the front part of the lot. This suit terminated in a judgment in favor of plaintiff therein, August 9, 1878. The court finds that “ in 1879 the marshal went through the form of executing this judgment, but the proceedings taken were not sufficient to constitute a change of possession of the property, nor was the plaintiff’s possession of the property disturbed thereby.”

The evidence bearing upon the question consists of that of Eli Mayo, plaintiff’s grantor, who showed possession from 1865 to 1876, and tax receipts for that period. He says: “In 1875 I moved a house onto the lot, and gave possession to Reeves. He never had possession of the whole lot; never of the rear of it.” He also says that he paid some of the taxes after 1876, but does not say that he paid them all, or for what years, or produce receipts therefor. Mrs. Reeves testifies that she and her husband lived on the lot a few months, and at that time Mr. Harnett had houses on the rear portion of the lot, and there was a cross-fence between them. The evidence also shows the introduction of the judgment roll in Le Roy v. Reeves, showing service of summons on Reeves May 18, 1876, which record is followed by uncontradicted evidence that when the marshal went to put the plaintiff in possession under the judgment the lot was fenced, but otherwise vacant, and the marshal .put plaintiff’s agent in possession of the lot. This suit, judgment, and the execution of the samé constituted in law such an interruption of the possession of plaintiff as prevented her from acquiring title by prescription, under the statute of limitations. The possession must have been continuous. (San José v. Trimble, 41 Cal. 536.) Even if she had paid the taxes during all that period, that alone, in view of this interruption of possession, would not have given her title. The finding is therefore not supported by the evidence, and as she had no paper title, but relied, and must rely, upon the statute of limitations for title upon which to recover, the judgment and order appealed from must be reversed, and the case remanded for new trial.

A complaint quia timet, counting upon title alone, as this one does, is not supported by evidence of prior possession insufficient to make title under the statute of limitations. Plaintiff in such a case must stand upon title, and this may be defeated by the defendant in possession showing an outstanding title in a third person, without connecting himself with it. (Cranmer v. Porter, 41 Cal. 466.) This rule applies to all the parties; but on the trial, before the final decision of the case, but some time after the submission thereof to the judge for decision, the defendant Wallace applied to the court, upon notice, for leave to open the case, and allow her to supply an omission which it was claimed had been inadvertently made at the trial, and introduce a deed from Le Itoy to herself of the property, thus bringing the record title back to herself, and which deed was made before the commencement of this action. The court, in the exercise of its discretion, denied the motion, and this is claimed to have been error. The granting of the motion was a matter resting in the discretion of the trial court, and its ruling would not be disturbed in this court unless there was a clear abuse of discretion. As the case must be reversed on other grounds, and the omission is not likely to occur a second time, it is not necessary to determine whether there was an abuse of discretion or not. We do not deem it necessary to discuss other points made in the briefs of counsel.

Judgment and order reversed.

Paterson, J., Thornton, J., and Sharpstein, J., concurred.