Bank of Mendocino v. Baker

Foote, C. This is an action in ejectment. A day or two before the trial of the cause, the defendants offered in writing to allow the plaintiff to take judgment for all the land sued for except that described in paragraph 6 of the answer. This seems to have been declined, and the result of the trial was, that the plaintiff obtained judgment for all the land except that set out in said paragraph, and for costs. From that judgment, and an order denying a new trial, the plaintiff has appealed.

Under the facts as found by the court, the plaintiff was defeated in its efforts to recover the land mentioned in the paragraph referred to, because it appeared upon the trial that the title and right of possession to that portion of the land in dispute was in the Garcia and Point Arena Railroad Company, a corporation not a party to the suit, and that the defendants only have possession of it as the agents of that company.

The evidence on which the findings were based, that the title and right of possession so existed, was, in brief, that the railroad company had been for many years in the open and notorious possession of the land, and that a deed in fee-simple had been executed to it about the time that it assumed such possession, in the year 1870, from one Campbell, from whom the plaintiff also claims to derive its title by mesne conveyance.

It further appears that the deed to the railroad company had never been recorded, and was lost.

The plaintiff claimed title by virtue of a sheriff’s deed on a foreclosure sale, under a mortgage executed by one Abbott, to whom Campbell had made a deed of the land, long after the deed to the railroad company was executed.

[116]In the brief of its counsel, appellant claims the evidence shows that the plaintiff was a bona fide purchaser, without notice of the unrecorded deed from Campbell to the railroad company, and that the findings to the contrary are wrong; and seems to rely mainly upon this point for a reversal of the judgment and order appealed from.

It is said the evidence shows that the possession of the railroad company was initiated under a deed of a mere right of way from two persons, Whitmore and Stevens, to whom there was no deed of record from Campbell; that, having taken possession in such manner and placed such a deed upon record, the railroad company had an apparent possession'under that deed, and that such possession, long continuous, open and notorious, as it might be, did not and should not have put the plaintiff, when it came to take a deed to the land, upon inquiry as to the true nature of the possession of the railroad company. In other words, the plaintiff contends that the possession of the railroad company was consistent with the deed from Whitmore and Stevens, although, by the record, they were strangers to the title of Campbell, the common source of title, and that the company cannot be heard to say the plaintiff should have inquired diligently as to whether the company held a deed from Campbell of prior date, although unrecorded, to that made to Abbott, from whom the plaintiff claims.