Abbey Homestead Ass'n v. Willard
Before: Rhodes
Synopsis
Evidence oe Title in Ejectment.—On the trial of an action to recover the possession of land, the production by the plaintiff of a lease of the demanded premises, executed by him to the defendant, and signed by the defendant, the term of which expired before the commencement of the action, makes out aprima fade case of title in the plaintiff.
Specification oe Seasons fob Mew Tbial.—If the defendant in ejectment moves for a new trial, and relies on the point that he was entitled to recover upon, his evidence of adverse possession, he must include it in his specification of reasons why a new trial should he granted.
Pbooe oe Oosteb in Ejectment.—If the answer in ejectment denies an ouster, and the plaintiff fails to prove it, the defendant is entitled to a nonsuit. But if, in such case, the Court denies the nonsuit, and the defendant afterwards proves that he is in possession of the demanded premises, the error is cured.
Evidence Aeieb Motion eob a Monsuit.—The Court may permit the plaintiff to introduce further evidence after a motion for a nonsuit is made; and unless the Court in doing so abuses its discretion, its action will not be disturbed.
Lease, Evidence oe Title in the Plaintiee.—In ejectment, the production of a lease executed by the defendant is prima fade evidence of title in the plaintiff, and is not overcome by evidence on behalf of the defendant that he was in possession when he executed the lease. The defendant must not only show possession, but paramount title, in order to overcome the estoppel created by the lease.
Bebtjtting Evidence in Ejectment.--If the plaintiff in ejectment rests on proof of a lease executed by the defendant, and the defendant then proves adverse possession, the plaintiff, in rebuttal, may introduce evidence of the deraignment of his title.
Advebse Possession by a Tenant.—The tenant cannot, during the term of a lease, hold adverse possession against the landlord by the mere intention so to hold, and without the doing of some act which would amount to adverse possession by a tenant who enters under a lease.
Lease Intebbupts Adverse Possession —The taking of a lease by one in adverse possession, interrupts the running of the statute of limitations, and any subsequent adverse possession cannot be added to the time which had run prior to the lease.
Evidence in Bide of Exceptions ob Statement.—When a statement or bill of exceptions is settled, it will be presumed that it contains all the evidence given in the cause which was necessary in order to explain the points specified, and that it would not have presented a different case in respect to the specified points, had it contained also the omitted evidence.
By the Court, Rhodes, J.: Several questions of fact have been discussed by counsel which do not arise on this appeal. The only specification of the insufficiency of the evidence to sustain the decision which is to be found in the statement on new trial is the last, and it is as follows: “The evidence is insufficient to justify the decision in this, that the complaint alleges that plaintiff is owner in fee, while the evidence only shows that plaintiff had a contract to purchase the premises described in the complaint.” This point cannot be sustained, for the plaintiff produced a lease of the premises, executed by him to the defendant for the term of six months, ending a few months before the commencement of the action. The lease made out a prima facie case "of title in the plaintiff.
2. The point that the defendant is entitled to recover upon his evidence of adverse possession, cannot be entertained, because it is not comprehended in any of the specifications in the statement.
3. The motion for a nonsuit should have been granted. The answer denies that the defendant “ ever ousted or ejected the plaintiff” from the premises; and the plaintiff, failed to prove the ouster; but the defendant afterwards’ [618]supplied the defect, by proving that he had remained in possession ever since the execution of the lease above mentioned. The production of that evidence cured the error.
4. The defendant urges that the Court erred in permitting the plaintiff to introduce further evidence, after the motion for a nonsuit was made. But that matter is committed to the discretion of the Court, and we see in it no .abuse of discretion.
5. It is also urged that the Court erred in permitting the plaintiff to offer evidence of the deraignment of his title, .after the defendant had closed. The plaintiff defends the .action of the Court on the ground that the defendant, having relieved himself of the estoppel of the lease, by proving that he was in possession of the premises at the time of the execution of the lease, the burden of the proof of title was cast on the plaintiff. But this is not the rule. (See Peralta v. Ginochio, 47 Cal. 459.) The plaintiff was entitled to rely upon the lease as prima facie evidence of title, and this was not overcome by the mere fact that the defendant was in possession at its execution. The burden of proof was on the defendant to show paramount title in himself, or one under whom he claimed. But, in our opinion, the •evidence was properly admitted in rebuttal—to overthrow the defense of adverse possession.
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