Dorland v. Magilton

By the Court, Crockett, J.: The action is ejectment, and amongst other defenses the defendants rely upon the Statute of Limitations. As we un[487]derstand the evidence, it establishes, without contradiction, that for many years prior to March, 1867, Thomas Borland, under whom both parties claim, was in the actual, exclusive and adverse possession of the premises in controversy, and was so in possession when he sold and conveyed to the defendants, who immediately succeeded to the possession, and were in the actual, exclusive and adverse possession at the commencement of the action. The title of the plaintiffs is derived through a quitclaim deed made by Borland to Brooks on the eleventh of April, 1865, and a deed from Brooks to the plaintiff made October 2d, 1869. The action was commenced May 16th, 1870—more than five years after the execution of the deed from Borland to Brooks. The evidence establishes without conflict, that Borland did not understand the deed to Brooks as including these premises, then within his inclosure and in his actual possession, and that notwithstanding the deed, he continued in the actual, adverse possession of all the land within the inclosure, including the premises in controversy, down to the time when he sold and conveyed to the defendants, who immediately succeeded to the possession and have ever since maintained it. The deed to Brooks was a mere quitclaim, without covenants, and we know of no reason in law why Borland could not assert and maintain an adverse possession against Brooks, notwithstanding the deed. (Franklin v. Dorland, 28 Cal. 175.) It is clear, from the proofs, that he did maintain such a possession until he conveyed to the defendants, who have maintained a like possession ever since. The action not having been commenced until more than five years after the deed to Brooks, was barred by the statute. In this view of the case, it is unnecessary to notice the other points discussed by counsel.

Judgment reversed and cause remanded for a new trial.