Nathan v. Dierssen

VAN DYKE, J.

Action to quiet title. A tract of land on the west side of the Sacramento River, in Yolo County, including the premises in controversy, up to the third day of February, 1889, belonged to one Herman Huber, at which time the said Huber died. It was proven on the trial that Augusta J. Huber was the widow of said Huber, deceased, and Herman L. Huber, their son, and that said Augusta and Herman L. were the devisees of said Herman Huber, deceased, under his last will and testament; that said will and testament had been admitted to probate in the superior court of Sacramento County; that said devisees and successors in interest of said Huber, deceased, prior to the distribution of the estate of said Herman Huber, deceased, mutually agreed to a partition

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of the real property of the deceased, and executed to each other partition deeds of said property; that in said partition deeds there was assigned and granted to said Augusta J. Huber (afterwards Huggins), the northern part of said tract of land, containing 156.16 acres, describing the same by metes and bounds, and assigned and granted to said Herman L. Huber the southern portion of said tract, consisting of 155.16 acres, more or less, also described by metes and bounds; that said partition deeds were duly executed and acknowledged by the respective grantors thereof; that on July 29, 1892, a decree of distribution in said estate was made and entered, whereby the said body of land was distributed to and partitioned between said devisees, according to the partition theretofore made under the deeds executed by the respective parties as aforesaid,—that is to say, to Augusta J. Huggins (formerly Huber), the northern portion of said tract of land, and to Herman L. Huber, the southern portion of said tract; that the land described in plaintiff’s complaint is embraced within the description of, and comprises the southern portion of, the land thus distributed to Augusta J. Huggins (formerly Huber), and joins the land distributed to Herman L. Huber. The plaintiff, by foreclosure proceedings and mesne conveyances, derives title from the said Augusta J. Huggins (formerly Huber). Upon the trial, the defendant offered in evidence a deed dated October, 1894, from Herman L. Huber and his wife to G. C. Simmons, conveying to said Simmons the property set apart and distributed to said Herman by the decree of distribution, and also offered in evidence a deed from said Simmons and wife, dated October 9, 1896, to defendant George E. Dierssen, conveying to him the same premises, and by the same description. To the introduction of these deeds the plaintiff objected, on the ground, among others, that the deeds did not describe the lands in controversy, which objection was overruled and the deeds admitted in evidence, and the plaintiff excepted. Against the objection of the plaintiff, the court allowed the following question to be asked of defendant’s witness, Herman L. Huber: “ Q. After the decree of distribution, did you and your mother make any agreement with reference to the line between the two tracts ? ” And he answered, “We did.” Also, the following question, over the objection of the plaintiff: “Q. State what the agreement was, and what, if anything, was done with reference to making or fixing the division line.” The witness answered in reference