Kockemann v. Bickel

Vanclief, C. Action to quiet title to a lot of land in the city of Los Angeles.

Besides denying the material allegations of the complaint, the defendants pleaded the statute of limitations (Code Civ. Proc., sec. 318), under which they claim title by prescription.

The trial was by the court without a jury, and the court found for the defendants on all the issues, and gave judgment accordingly. Plaintiff appeals from the judgment, and from an order denying his motion for a new trial.

It is clear that the defendants and their grantors were in the possession of the lot in controversy continuously during the period of more than five years immediately preceding the commencement of this action, and the only question presented for decision is, Was such possession continuously adverse to the plaintiff and his testator?

Defendants’ grantor entered into possession under a tax deed executed by the proper officer, definitely describing the lot, and otherwise in due form, except it recited, in substance, that the lot in question was offered for sale, together with three other lots in the same city, to pay the delinquent taxes assessed on the four lots, to unknown owners, and that the lot in question being the smallest portion for which any bidder would pay said taxes, it was struck off to N. P. Campbell, who was the lowest bidder, and who paid said taxes, with costs and charges, etc.

Campbell assigned the certificate of this sale to Frank Ellis, and upon it the tax deed was executed to Ellis on November 12, 1883.

Ellis testified that he bought the tax title from Campbell September 24, 1883 (this refers to his purchase of the certificate of sale), and within a week or ten days after that he inclosed the lot by a fence, except a gateway about four feet wide, and claimed to own as good a. title as a man could under a tax sale. Other witnesses testified as to the character of the fence, and the court [667]found that Ellis took possession immediately after the assignment of the certificate of sale, and “ inclosed and protected the same with a substantial fence, excepting a small gateway on the front end of said lot, which opened on the street; that said fence was composed of posts, boards, and wires, and sufficient to turn stock; that said Ellis claimed title to said lot, .... founded upon the tax deed, .... and that he occupied the same solely, exclusively, notoriously, and adversely to every other person in the world.”