Baum v. Reay

Appeal from a judgment of the Superior Court of the city and county of San Francisco.

The action was brought in 1877 to recover possession of the land described in the opinion of the court. The plaintiff claimed to have succeeded by mesne conveyanees to the right of possession.of Jacob 0. Beideman, who was in possession of the lot sued for prior to his death, which occurred in 1867. Plaintiff deraigned title under a deed from J. W. Brumagin, as the administrator of Beideman’s estate, who testified that the lot in controversy was included in a tract of land fenced in without any cross-fence when he took possession of it as administrator of Beideman, and that he employed the same men who were employed by Beideman to keep up the fences, and that as administrator of Beideman he had paid taxes on the land, and that no other person was in actual possession of any part of the land at that time. Brumagin gave an administrator’s deed of the land, March 13, 1868, to Frederick Hess, who conveyed it to Robert Mulilendorf March 31, 1868, and Muhlendorf’s executor conveyed it to the plaintiff August 12, 1874, who paid the taxes on the lot in controversy. The petition of Muhlendorf’s executor for an order of sale, dated September 19, 1873, was offered in evidence by the plaintiff, and stated that one half of the lot, on the southeast corner of Turk Street and Van Ness Avenue, was in the adverse possession of one Reay, who claimed title to said portion, and that the lot in that condition was appraised at five thousand dollars. Plaintiff proved an order of sale of the lot and an executor’s deed under said petition. On behalf of the defendant, Daniel Rogers, using the inventory and appraisement of the estate of Robert Muhlendorf, deceased, as a memoranda, testified that he was one of the appraisers, and that the inventory and appraisement was in his handwriting, and that the lot at the southeast corner of Turk Street and Van Ness Avenue was “ valued eight thousand dollars with a good title, but in its present condition valued at five thousand dollars.” The inventory and appraisement were then offered in evidence and excluded. The defendant’s counsel offered to prove by the witness Rogers that when the matter was fresh in his mind he made a memorandum as to the possession of the property in 1873 and placed in his hand the same inventory and appraisement, and the court ex-eluded the evidence. The court instructed the jury that in order that the possession of the defendant should be adverse for five years prior to the commencement of the suit August 3, 1877, it was not necessary that the defendant, or those under whom he claims, should have paid any taxes on the land, and that on the question of title or prior possession of real estate the payment of taxes is not material. The defendant asked the court to instruct the jury to disregard all testimony upon the subject of taxes, which instruction was refused. Further facts are stated in the opinion of the court.