Owen v. Morton

California Supreme Court Jul 1, 1864Published

Before: Currey

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Holding. The court affirmed the judgments against defendants who were tenants in common with the plaintiff, presuming sufficient evidence of ouster existed in the trial record, but reversed the judgment against a defendant who entered the premises after the action commenced.

Issues

Whether a tenant in common can maintain an action of ejectment against a co-tenant without proof of actual ouster.
Whether an appellate court must presume that omitted trial evidence supports the lower court's finding of ouster.
Whether a plaintiff in ejectment can recover against a defendant who entered the premises after the commencement of the action.

Disposition. Affirmed in part, reversed in part.

Quotations verified verbatim against the opinion

“The rule seems to be settled that where one having title as a tenant in common is in the exclusive possession of premises, he is presumed to hold for himself and his co-tenant”

“The rule of law in such cases is that every intendment must be in favor of the verdict or decision of the Court below”

“in order to entitle a plaintiff in ejectment to recover, he must show a right of possession in himself, and a possession in the defendant, at the time the action is brought”

Synopsis

Possession of one Tenant in Common.—Where one tenant in common is in the exclusive possession of land, the presumption of law is that he holds for himself and his co-tenant, and, to rehut such presumption, there must he proof of acts or declarations on his part indicating his intention to exclude his co-tenant.

What amounts to Ouster of Co-Tenant.—To enable the tenant out of possession to maintain ejectment against the co-tenant in the exclusive possession of the land, it is not necessary to prove an actual ouster j but proof that the tenant in possession appropriates the entire use or profits of the land, under a claim of exclusive right, or with a manifest intent to possess the whole exclusively, is sufficient.

Same.—Any act of the co-tenant in the exclusive possession which manifests an intention on his part to hold exclusively for himself, is equivalent, in law, to an actual ouster.

What does amount to Ouster of Co-Tenant.—Proof that the co-tenant is in the exclusive possession, and that he does not claim, by deed or lease from his co-tenant out of possession, is not sufficient to show an ouster or adverse possession.

Findings of Fact—When presumed Correct.—When the record shows that all the evidence introduced on the trial is not embodied in the statement, the presumption is that the findings and judgment of the Court below are warranted by the evidence, although the statement contains no evidence upon which to base such findings and judgment.

Same.—Every intendment is in favor of the verdict or decision of the Court below, and it will be presumed that the omitted evidence warranted the judgment.

Proof Necessary to Recover in Ejectment.—In order to entitle a plaintiff in ejectment to recover, he must show a right of possession in himself and a possession in the defendant of the demanded premises at the time the action is brought.

By the Court, Currey, J. This is an action of ejectment, commenced by the plaintiff, on the 11th of April, 1860, against Thomas H. Morton and others for the recovery of the possession of a tract of land in Solano Comity, whereon is situated the City of Suisun. The complaint is in the usual form in such cases, counting on title in the plaintiff on the 24th day of November, 1855, and entry and ouster of the plaintiff on that day by the defendants, and an unlawful withholding of the premises by them from thence to and at the commencement of the action, to the great dam[375]age of the plaintiff, etc. To this complaint nine of the defendants appeared and answered, to which answers the plaintiff filed replications. Subsequently the same defendants, by leave of the Court, made and filed amended answers, by which they pleaded—first; the general issue ; and in the second place, that they were each in the possession of a small piece of the land described in the complaint, which they respectively held in severalty under deeds of conveyance of the one undivided third interest in the respective portions by each of them held in possession, derived from the plaintiff or his grantees, and that when they obtained such deeds each of them was already in the peaceable possession of the parcels of land respectively described in such deeds of conveyance; and the defendant Chrysler further averred that as to one parcel of the premises, he had a conveyance of the whole of the plaintiff’s interests therein, derived from the plaintiff or from his grantees.

To the amended answers the plaintiff replied, denying each and every allegation of new matter therein contained.

At the trial the plaintiff gave in evidence a patent from the State, bearing date the 24th day of November, 1855, granting to him the land described in his complaint. By a stipulation entered into for the purposes of the trial, it appears that each of the nine defendants limited his defense in the action to parcels of the premises described therein; and the parties agreed by this stipulation that each defendant had a deed of conveyance of the undivided third part of the parcel of land in respect to which he defended, by which he acquired the plaintiff’s title to such undivided one third of the parcel of the premises by him occupied.

At a term of the District Court, held in Solano County in April, 1863, a judgment was rendered in favor of plaintiff against each of the defendants for the recovery of the undivided two third parts of the parcels of land which the defendants respectively had in possession and for costs of the action. At a subsequent day a motion for a new trial was made, and the same was denied. From these judgments, and from the order denying a new trial, the defendants duly appealed.

Owen v. Morton

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