McCormack v. Silsby

Hayne, C. Suit to quiet title; judgment for plaintiffs; defendants appeal.

The paper-title of the parties is in a sufficiently mangled condition.

On December 27, 1877, W. H. Silsby and E. D. Silsby were tenants in common of the property. On that day W. H. Silsby made a deed to Carroll and Miller, in trust to secure certain indebtedness to the Pacific Mutual Life Insurance Company. It cannot be ascertained from the record whether this deed purported to be of the whole title, or only of the grantor's interest therein, nor can the terms and conditions of the trust be ascertained further than is above stated. In April, 1878, the trustees sold the property to the insurance company. It 'cannot be ascertained whether this sale was properly made by the trustees or not. It is found that “a deed was subsequently, on the nineteenth day of April, 1879, executed to said insurance company by said trustees, and they became the owners and succeeded to the interest of said W. H. Silsby, in and to said lands.” In October, 1879, the insurance company made a deed of all its right, title, and interest in the property to the plaintiffs.

In September, 1878 (which was after the making of the trust deed above mentioned), W. H. and E. D. Silsby [74]made a deed of the property to Falkner, Morehead, and Davis, as trustees for the benefit of creditors.

In December, 1878 (which was after the last-mentioned deed), E. D. Silsby, who was then residing with his family on the property, declared a homestead thereon.

In June, 1887, E. D. Silsby died; and in December of the same year the surviving trustees, for the benefit of creditors, executed a reconveyance of the property to W. H. and E. D. Silsby (which latter person was then dead), reciting that the deed to them was inefficient by reason of the prior deed of trust to Carroll and Miller, and that the reconveyance was made “for the purpose of clearing the title.”

The action was commenced in. 1888 against the widow and children of E. D. Silsby.

We do not deem it necessary to consider the effect of this paper-title, for the reason that in our opinion the plaintiffs acquired a title by adverse possession. The court finds in this regard as follows: “That on the-day of November, 1879, said plaintiffs ousted the said E. D. Silsby from said premises, and entered into the actual possession of all of said lands, claiming all interest therein, as their own and in their own right, exclusive, and they have ever since said date last aforesaid, continuously, notoriously, and openly, occupied, used, and cultivated the said land, under a claim of title as their own, exclusive of any other right or interest, and hostile to the said E. D. Silsby and all the world. And have paid all the taxes,—state, county, and municipal,—assessed against said land and premises since said date of October, 1879, and that they had and held said land as just stated for more than five years continuously, to wit, from November, 1879, to June 10, 1887, prior to the death of the said E. D. Silsby.”