Posey v. Bay Point Realty Co.

PRESTON, J.

Action to quiet title to some eighty acres of land bordering Suisun Bay. Judgment for defendants. Appeal by plaintiffs.

The court made general findings showing the facts to be substantially as follows: Said land is swamp and tule land fronting the bay, being a part of the Gum Tree Ranch and also of Survey No. 120, Swamp and Overflowed Lands of the County of Contra Costa, conveyed to this state by federal grant in 1850 and by patent to J. E. Durham on June 3, 1893. It comprises approximately what is desig

[710]

nated the N.½ of the NE.¼ of section 6, township 2 N., R. 1 W., M. D. B. & M. In conveyances of said Survey No. 120, commencing about the year 1860, the parties customarily conveyed the whole of said survey under the common error of particularly describing it as the S.½ of the NE.¼ and fractional N.½ of the SE.¼ of said section 6, containing 101.09 acres of land, thus omitting from said description the quarter-section here in controversy, although the intent to convey it appeared from the total acreage specified and general descriptions of land running to and “meandering up the bay”.

On April 19, 1893, Durham and wife conveyed all of Survey No. 120 to Dodge by grant,- bargain and sale deed and. on the following day they also gave him a quitclaim deed to the N.½ of the NE.¼ of said section 6. On April 19th, also, Dodge executed and delivered to Ambrose a mortgage covering all said Survey No. 120 and on August 9, 1893, by grant, bargain and sale deed, he conveyed, subject to said mortgage, the whole Survey No. 120 to Posey and also executed to him a separate quitclaim deed to said N.½ of the NE.¼ of section 6. On November 10, 1900, to satisfy said mortgage, Posey and wife delivered to Ambrose a grant, bargain and sale deed which contained the particular description found in former conveyances of said 101 acres more or less but for the first time failed to specify that it covered all of Survey No. 120: Plaintiffs, heirs of Posey, claim that there was no intention on his part to include the parcel in suit in said deed to Ambrose and the trial court made a special finding to this effect, further finding that the record, or paper, title to said lands was vested in plaintiffs. From the time of said deed, however, Ambrose and his successors, including defendants, paid all taxes assessed against the whole of Survey No. 120, including said property, and Posey and his successors asserted no claim of ownership, within defendants’ knowledge, to any part of it until 1925. Further conveyances of said ranch made in 1908 by Ambrose to Schidler and by Schidler to Burgess and in 1911 by Burgess to defendant company, all covered land to the bay. For the latter conveyance defendant company paid $61,000, and it covered all of Survey No. 120, particularly including' the property in suit, specifi