Willis v. Wozencraft

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. This is an action to recover the possession of several lots in the City of San Bernardino, the plaintiff in her complaint claiming to be the owner of the whole interest in them. The. defendant in his answer sets forth that on the twentieth day of March, 1858, one Deputy was the owner of the premises ; that on that day, Deputy sold and conveyed the undivided half of the premises, by an agreement duly executed, acknowledged, and recorded, to the defendant, and under it he entered and ever since has held the lawful possession. The case was tried by the Court, who found for the plaintiff, and rendered judgment accordingly for the restitution of the possession of the entire estate to the plaintiff.

Both parties claim title under Deputy. On the twentieth day of March, 1858, Deputy executed to the defendant a title bond, in the penal sum of $1,875, by the conditions of which, after setting forth that the defendant had contracted to purchase of him the undivided half of the lots in controversy, and that the defendant was that day in peaceable possession of the premises in common with him, with the full right to an undivided half of all the rents and profits of the premises from and after that date, and that he had executed his note for $1,875, due in twelve months, as the price of the land, it was agreed that on the payment of the note and one-half of all the taxes thereafter assessed on the premises, Deputy was to make, execute, and acknowledge to the defendant a good and sufficient deed for the conveyance of the premises, and then the bond to be void. This agreement or title-bond was duly recorded on the third day of May, 1858. On the eighth day of July, 1858, Deputy conveyed the premises to one Stapleford, and on the eighth day of September, 1858, Stapleford conveyed the same to the plaintiff.

The agreement executed by Deputy to the defendant clearly [614]vested in the latter the equitable title as vendee, with the possession and right of possession of the property sold, being the undivided one-half of the premises. To a certain extent they became tenants in common of the property, Deputy holding the legal title to the entire estate, subject to the equitable title to the undivided half vested in the defendant, and the latter having the equitable title to the half, and the possession under it. Both Stapleford and the plaintiff had notice of the rights of the defendant by the record of the agreement, and his possession under it. The defendant seems to have recognized her rights, as, in September, 1858, she entered into and took possession of portions of the house situated on the premises, occupying several suits of rooms in it, to which the defendant seems to have made no objection. She continued in possession for some time, and there is no evidence that the defendant required her to leave. The Court found that the defendant was in the possession, “ holding adversely to the plaintiff, and denies her title to an undivided half of the premises.” This seems to be founded entirely upon a remark of one witness, H. M. Willis, that the defendant “ is now in possession of the premises, holding against plaintiff, and denies her title.” No explanation was given or circumstances stated corroborating this remark. It nowhere appears that the plaintiff ever notified him of her title, or ever demanded the possession, or requested to be let into the possession of her share with him, nor are there any special facts tending to show either an actual or constructive ouster of the plaintiff by the defendant, and we think neither this statement of the witness, nor the facts as found by the Court, are sufficient to establish an ouster.