Rix v. Horstmann

Temple, C. Plaintiffs appeal from an order refusing a new trial.

The action is to quiet title to a lot of land fronting nineteen feet on Pine Street, in the city of San Francisco.

Horstmann is the only defendant who answered, and he claims to have acquired title though A. Gf. Spencer, under a proceeding for the foreclosure of two mortgages executed by him.

It was admitted at the trial that the legal title is in Horstmann, unless the plaintiff has title by the adverse possession of himself or his grantor.

Since 1870, Alfred Rix, plaintiff’s father, has owned a lot on the corner of Pine and Powell streets in San Francisco, and upon it there has been a large boarding-house$ which has been kept by Rix, his wife superintending and managing 'it. It was known as 743 Pine Street. Adjoining, being 739 Pine Street, on the property in dispute, was a two-story house, of which it seems Alfred R.ix had possession as early as 1870. How he became [503]possessed the record does not show. This property has a frontage on Pine Street of nineteen feet. Next to it, easterly, at 737 Pine Street, was the residence of A. G. Spencer for three or four years beginning with 1870. After that he lived in the boarding-house at 743 Pine Street.

Mrs. Spencer was the sister of Mrs. Alfred Rix, and seems to have assisted her in managing the boardinghouse. There is some evidence tending to show that the boarding-house business included the three buildings above mentioned.

A. G. Spencer acquired title to lot 739 in 1871, but Alfred Rix continued to rent the property, and to collect rents, and make such repairs as were required, down to May, 1889, at which time plaintiff received his deed.

Rix also paid all taxes assessed on the property during that period. It was always assessed to A. G. Spencer.

Spencer mortgaged the property soon after his purchase to secure a loan of fifteen hundred dollars from the Hibernia Bank. Afterward he mortgaged the property to the Clay Street Bank to secure a loan of the same amount, and then to the French Bank. The last-named mortgage was in existence on and after 1880, and the mortgage tax, as the law required, was assessed to the bank. Alfred Rix paid not only the tax assessed on the property to A. G. Spencer, but the tax on the mortgage assessed to the bank, for the interest acquired through its mortgage from Spencer. This mortgage was given before the new constitution took effect, and provided that the mortgagor should pay the taxes. Rix continued to pay them until 1886. ' .