Keller v. Berry

Ross, J.: Ejectment to recover possession of a certain portion of a sixteenth section. It appears from the record that prior to the year 1872, one José Rubio settled on the land with his family, and proceeded, together with his son, Andres Rubio, who was of age, to cultivate and improve it. Improvements, consisting of a dwelling-house, orchards, and vineyards, were put upon the land, mainly by Andres. On the twentieth of March, 1868, José made an application to the State of California to purchase the land. His application was accepted by [489]the State Locating Agent, May 1, 1868, and was filed in the State Land Office on the twentieth of June, of the same year. The State officers issued to him a certificate of purchase for the land on the tenth of April, 1872, and a patent therefor, regular in form, on the third day of January, 1874. It is claimed on behalf of the appellant that by these proceedings, and others incidental to them, José Rubio acquired no title to the premises.

In the view we take of the case, it is unnecessary to determine whether he did or not; for the record further shows, that in February, 1877, he borrowed of the plaintiff the sum of six thousand dollars, and as security therefor executed to the plaintiff a mortgage on the property in question, together with an adjoining tract of about twelve acres—which mortgage was duly recorded at the time, in the records of the proper county.

In the month of February, 1878, José, in the language of the findings, “ considering his title under the State to be void, abandoned his claim to the premises in controversy, and delivered possession thereof to said Andres Rubio, who from thenceforward took possession and claimed the same as his own, until the-day of May, 1879, when he abandoned the same to the defendant herein, and allowed him to take possession of the same, together with the improvements.”

In the mean time, the plaintiff had commenced an action to foreclose his mortgage, in which both José and Andres Rubio were made parties defendant, and in May, 1879, a decree of foreclosure was duly entered in the action in favor of the plaintiff. Under this decree the Sheriff of the county, on the sixth day of June, 1879, sold the premises in controversy to the plaintiff for the sum of $8,542, and on the same day executed to the plaintiff a certificate of sale therefor. Mo redemption having been made, the Sheriff, on December 8, 1879, executed to the plaintiff a deed for the property.