Packard v. Johnson

California Supreme Court Jul 1, 1881 No. No. 6,544Published

Before: McKinstry

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Holding. The court held that the trial court's findings were insufficient because they stated only evidentiary facts rather than the ultimate fact of adverse possession or ouster between co-tenants.

Issues

Did the trial court make a sufficient finding on the issue of adverse possession?
Do the findings of evidentiary facts necessarily constitute an ouster of a co-tenant?

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The Court below failed to find the material and ultimate fact alleged.”

“While the facts found tended to prove adverse possession for the statutory time, yet the facts found did not necessarily constitute adverse possession.”

“The findings in the record are not of such probative facts as enable the Court to declare that the ultimate fact of adverse possession necessarily results from them.”

Synopsis

Co-tenants—Oustek—Statute of Limitations—Findings.—In an action of ejectment, the defendant pleaded the Statute of Limitations, and the Court found, in effect, that on a certain day the plaintiff and S., the grantor of defendant, were in possession of the demanded premises; that afterwards, one C. made a quit-claim deed, purporting to convey the premises to S.; that S. thereupon entered into the open, notorious, and exclusive possession of said land, claiming to be the owner of the entirety thereof, .under said deed, built a dwelling-house thereon, and inclosed the whole thereof with a substantial fence, and received the profits to his exclusive use, claiming to be the sole owner of the entirety; and so continued until he conveyed said premises and delivered possession thereof to the defendant; and thereupon, and more than five years before the commencement of the action, the defendant entered upon, and has ever since been in the sole, open, notorious, and exclusive possession, keeping the same inclosed, as aforesaid, and receiving the entire profits to his exclusive use, and claiming to be the owner under said deed of the whole thereof. Held, not to be a sufficient finding of an ouster.

Id.—Id.—A tenant in common is ousted by his co-tenant, only when he is aware that his co-tenant in possession claims the land as exclusively his own, or (at the very least) when, as a prudent man reasonably attentive to his own interests, he ought to have known that his co-tenant asserted an exclusive right to the land.

McKinstry, J.: Ejectment. In his complaint plaintiff alleges that he is the owner “of an undivided one-half interest” of, in, and to the tract of land therein described.

After certain denials, the answer proceeds:

“ Further answering, said complaint, and as a special defense to said action, defendant avers that for more than five years prior to the commencement of said action the defendant, and those through and under whom he claims, holds, and owns, have been in the continuous, actual, open, and notorious and exclusive possession of said premises, holding adversely to the plaintiff’s pretended right or claim, and holding the actual, open, notorious, and exclusive possession of said tract of land and premises, and of every part and portion thereof, adversely to said plaintiff and all comers. Defendant avers, that neither the plaintiff nor his ancestors, predecessors, or grantors, nor any or either of them, was or were, or have been, seized or possessed of the premises sued for, or of any part or portion thereof, within five years next before the commencement of this action.”

No objection has been made to the foregoing as a plea of the Statute of Limitations. Did the Court below find upon the issue thus presented ?

The Court found, in effect, that, prior to the 24th day of September, 1860, and from November 15th, 1859, the plaintiff and one Sanor, grantor of defendant, claimed a right to the possession, and exercised acts of ownership upon a tract of land, including the demanded premises, as tenants in common; that Sanor then, for a valuable consideration by him paid, took and received a deed from one Cocke, whereby the latter remised, released, and quit-claimed to said Sanor all his estate, right, title, [182]and interest in the lands whereof Sanor and plaintiff had theretofore claimed to be the owners as tenants in common; that Sanor thereupon went into the open, notorious, and exclusive possession of said land, claiming to be the owner of the entirety thereof, under said deed—“said Ward (who had previously conveyed to plaintiff and Sanor), Sanor, and plaintiff having prior to that time had possession of said land to the extent of grazing their stock thereon; and said Sanor, within four months after such purchase, so claiming to be the owner thereof, built a dwelling-house and barn thereon, and inclosed the whole thereof with a good and substantial fence, * * * and said Sanor, from the time he built said dwelling-house, and until the time of his conveyance to defendant, * * '* lived in said dwelling-house with his family, and was in the open, notorious, and exclusive possession,” * * * keeping the same inclosed as aforesaid, and receiving to his exclusive use the rents, issues, and profits of the whole, “ claiming to be the sole owner of the entirety thereof.”

Packard v. Johnson

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