Fife v. Mathes

VICTOR E. SHAW, J.,

pro

tem.

Plaintiff sues in ejectment, alleging that on July 10, 1914, while he was in láwful and peaceable possession of certain described city lots, claiming title thereto in fee, he was ousted therefrom by defendant, who, without right or title and by force, entered into possession of the same, which he withholds from plaintiff, all of which allegations are denied by the defendant, who in his answer alleges ownership of the property in himself.

The case was tried by a jury, which, as directed by .the court, brought in a verdict for defendant, upon which judgment was entered and from which plaintiff appeals.

Plaintiff’s claim to the property was based wholly upon the naked possession thereof, and defendant’s right thereto was founded upon a tax deed from the state of California,

[260]

which the court, over plaintiff’s objection to its competency, admitted in evidence. The court’s ruling in so receiving the deed in evidence is the chief, and, indeed, the only error relied upon by plaintiff for a reversal of the judgment.

It is unnecessary to pass upon the alleged error of the court in so ruling, since, as we view the case, the record fails to show that plaintiff was ever at any time in possession of the property.

As disclosed by the evidence of Herbert C. Kelly, who appeared in the. dual capacity of both attorney and sole witness for plaintiff, the latter on April 1, 1914, for an expressed consideration of one dollar, executed to him an irrevocable power of attorney “to buy, acquire, receive, sue for, defend, recover, manage, maintain, improve, control, sell, conyey, assign, mort gage, pledge, lease, release, receive rents, profits, incomes, proceeds and price and reinvest or dispose of the same, compromise, settle and deal in or with in every way whatsoever, as freely as I myself might do in the absence of this grant, any and all real or personal property or interest or right therein or thereto now or hereafter standing in my name or in or to which I now or hereafter may have any interest or right whatsoever within, the County of San Diego, State of California, and to do any and every act, execute any and every instrument, carry on any and every business, and to make and carry out any and every agreement or arrangement which may in his judgment be convenient or advisable for any of the purposes mentioned herein. ’ ’