Smith v. Barrick

BUCK, P. J.,

pro

tem.

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 749 of the Code of Civil Procedure. But by the dismissal of the action against all of the defendants except the original heirs and the administrator, the suit has become in fact an action to quiet title.

(Faxon

v.

All Persons,

166 Cal. 707, 712, [L. R. A. 1916B, 1209, 137 Pac. 919].) Judgment was given in favor of plaintiff upon the ground that plaintiff and his predecessors had acquired title by adverse possession against the defendant heirs, and also against the administrator. From' this judgment all of the defendants appeal. The facts upon which the trial court based its findings and decree are substantially as follows: On September 4, 1876, the ancestor from whom all parties deraigned title, Henry Reece, died intestate in the county of Nevada, leaving as his sole heirs his widow, Amanda "Reece, and three children, the'defendants

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herein, aged respectively twelve, six, and three years, the youngest of whom did not become of age until 189-1. With the exception of some personal property of the value of $447, the deceased left no other property except the quarter-section of land in controversy of the value, at that time, of $250. The property was the community property of himself and wife. On October 9, 1876, letters of administration were issued to his widow, Amanda Reece. But she took no, other proceedings in the estate than to publish the notice to creditors and cause an inventory and appraisement to be made of the property. She died in 1887, and in 1915 letters of administration on the estate were issued to C. W. Barrick, who is made a defendant in his capacity as such administrator. On "January 18, 1878, Amanda Reece made a deed of quitclaim to one A. S. Waldo, by which she did “remise, release, and forever quitclaim unto the party of the second part and to his heirs and assigns” the property in controversy. This deed was recorded in the records of Nevada County, July 3, 1880. Waldo was a son-in-law of Amanda 'Reece and had actual knowledge of the family interest in the land. At about the time she made the deed to Waldo, Amanda Reece and her three children moved from the land in Nevada County to Auburn, in Placer County, where they lived for a period of five years and then moved to Ukiah, in Mendocino County, a distance of about four hundred miles from Nevada County. It does not appear that any of the defendants ever returned to or visited the premises or ever received any income from the property, nor did their mother ever talk to them “about this property,” and they never heard about it until the year 1913, when they were asked to give a quitclaim deed of their interest in it. After he obtained the quitclaim deed to. the property in 1878, A.-S. Waldo “put some stock'on it and put a man there to take care of the stock. ’ ’ He did not live on the property himself. The property was under fence and was cultivated and no one ever objected to- his possession at the time. He leased the property to a third person and collected the rent for the whole of it and paid taxes on it. On April 11, 1881, Waldo, by a grant, bargain, and sale deed which was recorded on April 231, 1881, conveyed the property to John Davis, who took possession of the land, cultivated it, and pastured it, re