Nidever v. Ayers

Foote, C. — The complaint in this case, in one aspect, might be called a complaint in an action to quiet title. Upon that theory, the evidence showing that the legal title was in the defendant, no right of recovery would accrue to the plaintiff. (Von Drachenfels v. Doolittle, 77 Cal. 205.) But possibly it might be construed as a complaint for a conveyance of the legal title, and inasmuch as we have reached the conclusion that the judgment in favor of the defendant should be affirmed, we have examined the merits of the case.

[40]The complaint alleges that one George Nidever, the father of the plaintiff, was, at the date of his death, the owner of and seised of an equitable estate in certain lands; that the legal title thereof was vested in John Nidever at the time of the bringing of this action, also deceased, and that the last-mentioned person held such lands as the trustee of his son George, above mentioned, the father of the plaintiff, George D. Nidever.

The record shows that, upon the death of George Nidever, who died intestate, his father, John Nidever, became the administrator of his estate, being duly appointed as such by the probate court of the proper county. While acting in that capacity, and, as alleged, “holding the legal title to and being in possession of said equitable estate,” the administrator filed an inventory, in which, among other things, he declared the land in dispute equitably to belong to his son’s estate. He also filed in that court a verified petition, asking that the estate of his decedent be distributed, in which the same declaration is made as to the title of the land involved here.

An order of distribution was made, and under it the plaintiff, as the only child surviving his father, George Nidever, had set apart to him an undivided one half of the land distributed, as above specified in the inventory and petition, the other half being set apart to his mother, the widow of George Nidever, which last is not included in this action.

Several years before this order or decree of distribution was recorded, John Nidever made and delivered a deed of the land, to which he thus held the legal title, to George S. Gilbert and W. S. Chaffee, and through that deed and mesne conveyances the defendant deraigned his title from John Nidever.

The deed which the latter executed was duly recorded long before the decree above mentioned. Both parties to the action claim from the same source of title, under a patentee from the United States government.