Manly v. Howlett

Myrick, J.: This is an action of ejectment to recover the possession of two lots of land situate in Bakersfield, Kern County, together with rents and profits. Plaintiff alleges that on the 11th of December, 1878, he was, has been ever since, and is, the owner, and is entitled to the possession of the lots, and that on that day defendants were, since have been, and are, in the adverse, wrongful, and exclusive possession of the lots. The answer of defendant Howlett denies the ownership of plaintiff, admits his own possession, alleges that he is lawfully in possession, denies the damage and the value of the rents and profits to be $100 per month, and denies every other allegation of the complaint. Defendant alleges that plaintiff’s cause of action is barred by §§ 318 and 319 Code of Civil Procedure, and that he (Howlett) is the owner, and has been in the open, notorious, and exclusive possession, under claim of title, exclusive of every other right, ever since November, 1871, and that he has paid all taxes.

The Court filed its findings of fact as follows:

[961]st. That each and every allegation of plaintiff’s complaint are untrue.

2nd. As to the rents and profits.

3rd. That the defendant Howlett is the owner, and entitled to the possession of the property described in the complaint.

4th. That defendant Howlett has been in the open, notorious, and exclusive possession of the property, with a claim of title, (being a gift from Julius Chester, in August,, or September, 1871) since November, 1871, holding the same adverse to plaintiff, his ancestors, predecessors in interest, and grantors.

5th. As to payment of taxes.

6th. That plaintiff’s action is barred by §§ 318 and 319 Code of Civil Procedure, defendant having held said property adverse to him more than five years immediately preceding the commencement of the action.

7th. That the allegations of defendant Howlett’s answer are true.

Upon these findings judgment went for defendant. Plaintiff moved for a new trial, which was denied, and plaintiff appealed.

Without directly passing upon the sufficiency of each of these findings, as findings of facts, which seem to us to be quite, insufficient, the judgment based upon them cannot stand. In the first finding the Court found that “ each and every allegation of plaintiff’s complaint are untrue among other allegations, that defendants, on the 11th of December, 1878, were, and since have been, and are, in the adverse and exclusive possession of the land; and in the 7th finding the Court found that “ all the allegations of defendant Howlett’s answer are true,” viz., that he (Howlett) is, and has been, in the exclusive possession of the property ever since November, 1871. In other words, plaintiff’s allegation that Howlett was and is in possession is untrue, but Howlett’s allegation that he was and is in possession is true. Howlett’s defense was based on two propositions, viz., a gift, and the Statute of Limitations, to either of which possession was essential; therefore, the Court should have found whether, or not, he was in possession. When findings are directly antagonistic, it cannot be said that either finding is correct, or, at least, which is correct.