Zolezzi v. Michelis

GOODELL, J.

This is an appeal from a decree quieting respondents.’ title to a parcel of real property in San Francisco.

The property described in the complaint is 34 feet, 4% inches by 157 feet, 6 inches in area, fronting on the northerly side of Lombard Street, and extending northerly.

Appellant by his answer denies respondents’ title to

an undivided one-quarter interest in the northern-most 20 feet of the property

and by his cross-complaint asserts that he “is the owner in fee simple, entitled to the possession, and in possession” of such fractional interest.

Respondents’ claim of title to the whole interest in the 20-foot strip is based on adverse possession. Such strip is all that is involved in this ease.

Respondents’ chain of title starts after the 1906 fire with a decree quieting the title of Allina Avy to the entire lot (157 feet, 6 inches in depth). On her death it was distributed to Eugene Avy, Edmond Avy, Robert C. Avy and Emilie A.

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Chapuis. On February 26, 1930 these four distributees conveyed the entire lot by grant deed to Eobert L. and Genevieve Mayoek and on the same day the Mayoeks conveyed it by grant deed to respondent Bessie Zolezzi. On April 12, 1943, she made a grant deed to herself and her husband, Ernest Zolezzi, as joint tenants, and they have so held it ever since.

Appellant’s claim arises as follows: On February 6, 1930, 20 days before the deed to the Mayoeks, Eobert C. Avy, one of the four owners, executed a deed of trust to two trustees, for the benefit of Christine Woehleke, covering his one-quarter interest in the 20-foot strip (and other property not herein involved). At a trustees’ sale the beneficiary was the bidder and on June 1, 1932 the trustees made a deed to her of the one-quarter interest, which deed was recorded on August 4, 1933. On March 26, 1945, she made a quitclaim deed of the 20-foot strip to appellant and his wife as joint tenants. Christine Woehleke filed a disclaimer in this suit.

On June 1, 1932, when Christine Woehleke acquired title by the trustees’ deed, she became a tenant in common with Bessie Zolezzi of the 20-foot strip, their interests therein being one-quarter and three-quarters, respectively. Ever since then Bessie Zolezzi and her husband have been in the exclusive possession of every part of the property, including the 20-foot strip. The court found that the Zolezzis have been in possession of the whole property continuously since February 26, 1930, and have paid all taxes, and “that during all of said times, all said land has been protected by a substantial enclosure.” The evidence shows that the main part of the lot is improved with a three-story structure consisting of six Borneo flats and that the Zolezzis moved into one of them as soon as Bessie Zolezzi bought the property, or possibly before. It shows, also, that the 20-foot strip is part of the backyard of the property and that there are some sheds thereon, built by respondents.