Hancock v. Burton

The Court. The plaintiff brought this action against the appellants and one Thomas M. Agers to recover the possession of a tract of land in San Bernardino County, containing 1,280 acres, with $500 damages for the withholding thereof, and $100 per annum from and after January 1, 1879, for rent and profits.

The defendants denied the plaintiff’s ownership or right to the possession of the land, and denied that he [53]had been or would be damaged in the sums of money alleged, or in any sums, by reason of their withholding its possession, or on account of a loss of its rents and profits. They then set up that they were in possession of and holding separate parcels of the land, and that as to each one of them the plaintiff’s cause of action was barred by the statute of limitations.

The case was tried before a jury, and a verdict was returned in favor of the plaintiff, but without damages, on which judgment was entered. The appellants moved for a new trial, and now prosecute this appeal from the judgment and an order denying their motion.

Two points only are made in support of the appeal: 1. That the verdict was not justified by the evidence; and 2. That the judgment was erroneously entered against each of the defendants for the possession of the entire tract, when it should only have been against each one for the parcel separately claimed by him,

1. We think there was ample evidence to support the verdict. The plaintiff showed clearly that he had title to the demanded premises, and there was at least a substantial conflict as to whether the defendants had occupied, and claimed, and paid taxes on their respective parcels for such time and in such manner as would enable them to assert title under the statute of limitations.

2. Conceding that the court erred in rendering a joint judgment against the defendants for the whole tract, still the error cannot be considered on this appeal.

Although the defendants answered severally, claiming that they were not jointly withholding the entire tract from the plaintiff, and that they were severally in possession of specific portions thereof only, the plaintiff was not precluded from proving his allegation that they were jointly in possession of the entire tract. It was so found by the jury, and there is no specification in the statement on motion for new trial of insufficiency of the evidence in this respect.