McCourtney v. Fortune

McKee, J.: This was an action of ejectment for part of block 119, Western Addition, San Francisco.

It is alleged in the complaint that Margaret McCourtney, wife of J. H. McCourtney, was, on the 4th day of March, 1868, and at the commencement of the action, the owner in fee-simple absolute, possessed and entitled to the possession of the land in controversy, and that on the 24th day of March, 1868, the defendants entered upon it and ousted the plaintiffs therefrom. The answer contains a general denial, a plea of ownership of the lands by the defendant J. W. Coleman at the commencement of the action, and of the Statute of Limitations.

[618]Upon the trial the Court below found:

“ That the said M. P. McCourtney was not, on the 4th of March, 1868, nor at any other time, the owner in fee-simple absolute, nor possessed nor entitled to the possession of, nor did she at the commencement of this suit.own, nor was she entitled to the possession of, the tract of land described in the complaint, nor any part thereof.

“ Nor did the defendants, on the 24th day of March, 1868, or at any other time, wrongfully or unlawfully, or at all, oust the said M. P. McCourtney therefrom. Nor did the defendants wrongfully or unlawfully withhold the possession thereof from the plaintiffs, or either of them. That the said land is not the separate property of the plaintiff, but was at the time of the commencement of this action the property of the defendant Coleman.”

It is assigned as errors that the Court failed to find upon the Statute of Limitations; that the evidence is insufficient to justify the findings; and that there was error committed in admitting in evidence, against the plaintiff’s objections, the record and papers in an action of forcible entry and detainer wherein one Evans was plaintiff and Osborne and others were defendants, and the judgment roll in the case of J. D. Stevenson et al. v. John Evans et al.

1. It appears that the plaintiffs claimed title to the land by mesne conveyances through Osborne, from J. D. Stevenson, who claimed to have made a location upon the land in 1850, and inclosed it by a substantial inclosure, and continued in the possession of it until he sold and conveyed it to Osborne; and the defendants claimed title, founded upon an alleged prior possession of one John Evans, who, it was claimed, had possession in 1849, by residence, inclosure, and cultivation, and continued in possession until March, 1855, when he transferred it to one McPae, through whom, as well as through Osborne, the defendant Coleman deraigns title. The prior possession of the parties from whom plaintiffs and defendants derived their respective claim of title was, therefore, a material fact in the case, and the judgment rolls which were offered in evidence by the defendants, and admitted by the Court, were records of contests between those parties for the possession of the land before the