Bryan v. Tormey

Beatty, C. J. The land in controversy in this action is part of a Mexican grant patented to the Peraltas in 1877. In 1859, one Jurgo, being.owner by conveyance from the Peraltas of a part of the grant, sold and conveyed two adjoining parcels to the brothers John and Peter Mathews respectively.

There was a map of the Peralta grant, known as ICellersberger’s map of the ranchos of Vicente and Domingo Peralta, upon which the different subdivisions were designated by numbers, subdivision 56 being north of and adjoining subdivision 53. The conveyance from Jurgo to John Mathews included 53 and the south 27.41 acres of 56. The part of 56 adjoining on the north was included in the conveyance to Peter Mathews.

After the conveyances from Jurgo, the brothers Mathews were in possession for a time of the parcels conveyed to them respectively, and John Mathews paid the taxes on the south 27.41 acres of 56.

In 1861 Harmon and Opdyke purchased 53 from John Mathews, and at the same time offered to purchase the south 27.41 acres of 56. But John Mathews refused to sell them this part of 56, for the reason assigned by him, [128]that he had promised it to his brother, Peter, saying at the same time that he would not give him a deed till he paid for it, and that when he did pay for it he would give him a deed. These declarations were repeated to Harmon on more than one occasion in substantially the same terms. Subsequently, in conveying 53 to Harmon and Opdyke, John Mathews in his deed described the tract conveyed as being bounded on the north by land of Peter Mathews, thus distinctly declaring in writing that the southern part of 56 was his brother’s land.

About the same time Peter Mathews took possession of said 27.41 acres of 56, inclosed it with other lands of his own, and afterward cultivated and used it as if it was his own. For two years prior to this date, this parcel had been assessed to John, and he had paid the taxes. Ever afterward it was assessed to and the taxes were paid by Peter and his grantees. From the time he so entered into the possession, Peter in every way acted as if lie was the owner of this parcel, and in 1872 he sold and conveyed seventeen acres of it to the plaintiff’s grantors. For three years he remained in possession of the part sold as tenant of his grantees, but in 1875 they leased their portion to another tenant, Garin, who occupied, used, cultivated, and resided upon it. It was not, however, separately inclosed, but remained as before, in a common inclosure with Peter’s other land adjoining.