Galvin v. White

MELVIN, J.

Appeal from a judgment rendered in favor of the defendant White and from an order denying plaintiffs motion for a new trial. The action was one to quiet title to a fifty-vara lot in the city and county of San Francisco.

Plaintiff claimed title through an unrecorded deed from one Thomas Lea, purporting to have been made, executed, and delivered to said Galvin in 1891. The court found that this deed was destroyed by the fire of April 18, 1906. There were also findings that Thomas Lea never entered into possession of the property under claim of title founded upon a written instrument; that said Lea never protected the land by a substantial inclosure; that he never cultivated nor improved it; that neither the plaintiff nor his predecessor had continuously occupied said property for a period of five years; and that neither the plaintiff nor his grantor had paid all the taxes during a period of five years continuously or during any period

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of time. The court also found: “That the defendant and his predecessors and grantors were possessed of said property within the times required by the laws of the United States of America, the state of California, and the ordinances of the city and county of San Francisco, from the original location of J. H. Rickett in the year 1849 down to the year 1906”; that defendant had improved the property; had protected it by a-substantial inclosure; and had paid all taxes upon said property from the year 1891 to the time of the commencement of the action.

In his motion for a new trial plaintiff introduced an affidavit whereby he asserted that he could prove by certain witnesses that Thomas Lea, his alleged grantor, was in possession of the property here in litigation from 1870 continuously down to the time of his own occupation. His principal excuse for failing to produce said witnesses at the trial was that he had understood the judge who tried the case to express himself as satisfied with the proof which the plaintiff had introduced. An examination of the language used by the court (which also appears by affidavit) convinces us that there was no basis for such belief by plaintiff. At the trial Mr. Pringle, attorney for defendant White, was asked to admit that certain absent persons, if brought into court, would testify substantially to the same facts stated by witnesses who had been examined theretofore in plaintiff’s behalf. This he declined to do, and the judge said: “By producing those witnesses and putting them on the stand you would be only accumulating those facts; you have established those facts.” Obviously the court was merely calling plaintiff’s attention to the circumstance that even if the requested stipulation were made it would have no original force, but would be merely in the nature of cumulative evidence.