Trenouth v. Gilbert

Foote, C. — This case has been here before (63 Cal. 405). It is an action to establish a trust by one claiming to be co-tenant, with others, of a tract of land in San Mateo County, and for other relief in connection therewith.

The question determined on the former appeal seems to have been that the findings of fact, to the effect that the defendants held an adverse possession of the lands in dispute for a time sufficient to bar the plaintiff’s right of action was not sustained by the evidence. That finding was, in substance, that the plaintiff’s cause of action accrued more than four years before the commencement of the action, and that there had been a continuous adverse possession by the defendants for more than five years prior thereto.

It was then said that the only evidence to sustain the finding was that of one witness (Mr. Teague). Upon the trial of the case now on appeal, which seems to have been tried with a view to obviate the objection sustained on the former appeal, there was other evidence, which tended at least to show that all of the contesting defendants held adverse possession for more than five years after plaintiff’s right of action accrued before suit brought. First, there was a deposition of Mr. Teague read, taken since the former trial. He testified: “ That the defendants answering in the suit were all in the occupancy, cultivation, inclosure, and pasturage of the entire four leagues; some claiming to own one thousand acres, and others a less quantity, and claiming to own separately. They claimed all the legal title to the land in [586]their possession, dating hack as far as 1858, through themselves and their grantors.’ The claimed the whole legal title.”

As to the equitable title, he says that he knew of their having notice of the equitable title (bought by the plaintiff on the twentieth day of April, 1866) as early as 1867, and previous, running back to 1864; conversed with them individually and separately about this equitable title, purporting to arise under the will of one Buelna; they all refused to recognize it, except Mr. Bell, who is not a party to this action, he having bought the plaintiff’s title to his, Bell’s, tract of land.

He also said that in 1867 or 1866 Trenouth requested him to speak to these defendants in possession, and propose to them a compromise. He did so, and reported progress, but the defendants all repudiated Trenouth's claim. He states that he is confident that it was in 1866 that he first told Trenouth that the chances for a compromise with the defendants seemed bad; that the defendants said they had all the legal title; that they had improved the land; that they had bought up one bogus claim, purporting to have arisen under this will (that of Buelna, the Mexican grantee of the land), and did n’t propose to buy off any more.