Fitzimons v. Atherton

SHAW, J.

This is an action to quiet title to a tract of land containing 4.44 acres, constituting a part of lot 2 of Kelley’s Addition to the town of Delano, in Kern County. The tract embraces part of the east half and part of the west half of the lot, which, according to the plat and survey thereof, contains ten acres. The defendants answered, admitting the ownership of the west half of lot 2 by the plaintiff, denying his ownership of any part of the east half thereof, and also -alleging that defendant A. C. Atherton is the owner of said east half of the lot, and that he makes no claim to any other part thereof. The findings are in favor of the defendant on all these issues. Judgment was given declaring that A. C. Atherton is the owner and is in possession of the" east half of the lot and quieting his title thereto. The plaintiff appeals from the judgment and from an order denying his motion for a new trial.

There is no adjudication respecting the alleged claims of defendants to the portion of the 4.44 acres described in the complaint lying within the west half of the lot. We mention this in explanation merely. The evidence shows that they never made such claim, their pleadings do not make the claim, the failure to adjudicate all the issues is not complained of, and, under the circumstances, the plaintiff does not appear to be substantially prejudiced by the omission of a formal judgment in his favor as to that part of the premises.

The proof on the part of the plaintiff showed title of record to the west half only. There was evidence of long continued adverse possession of the other part of the tract in dispute, but there was no evidence that plaintiff had paid taxes on any part of the lot except the west half. Therefore his claim of title to a part of the east half by .adverse possession was not established.

[632]

The defendant A. C. Atherton, in support of his claim of title to the east half, introduced a deed by the tax-collector, on behalf of the state, conveying said half to the plaintiff. The conveyance purported to be made in pursuance of a sale to the state in July, 1895, for non-payment of taxes, a subsequent deed thereof to the state, and a subsequent sale by the state to Atherton, all in accordance with the law. The deed to Atherton described the property as “Lying and being in the county of Kern, state of California and described as follows, to wit: E