Patchett v. Pac. Coast Ry. Co.

Belcher, C. This action was instituted in November, 1892, by John A. Patchett and his four children to have their title quieted to a tract of land in San Luis Obispo county. The defendant corporation by its answer alleged title in itself to a strip sixty feet wide across the said tract, and pleaded in bar of the action the statute of limitations. The court below gave judgment against the defendant, from which it has appealed on the judgment-roll.

The facts found are in substance as follows: The plaintiff, John A. Patchett, and one Amanda Patchett, were husband and wife, and on December 9, 1880, were divorced. The land described in the complaint was community property owned by them, the title standing in the name of the husband, but no division or disposition of it was made by the decree. After the divorce and on the same day John A. executed to Amanda a deed of the said property, which was duly acknowledged and recorded on the day of its date.

It recited: “ That whereas the parties hereto have heretofore been husband and wife, and whereas a decree of divorce has been this day made and entered in the superior court of the county of San Luis Obispo, state of California, dissolving the marriage between the parties, and awarding the care, custody, and control of the minor children of the parties hereto to said party of the second part; and whereas certain property of the party of the first part was and is the community property of the parties hereto; now, as a full and complete settlement of all property rights as between the parties hereto, and to make provision for the support and education of the said minor children of the parties hereto, said party of the first part, in consideration of the premises and of one dollar lawful money of the United States to him in hand paid by the said party of the second part, has granted, bargained, sold, conveyed,

[507]and confirmed, and does hereby grant, bargain, sell, convey, and confirm unto the said party of the second part and her heirs and assigns forever, all those certain tracts, pieces, or parcels of land (describing the property), to have and to hold all and singular the said premises with the appurtenances unto the said party of the second part, her heirs and assigns forever, in trust, for the use and benefit of herself and Mary Alice Patchett, now aged ten years; Benjamin E. Patchett, now aged nine years; Bertha Mabel Patchett, now aged five years; and Minerva Emma Patchett, now aged two years, the minor children of the parties hereto, to collect the rents and to receive the rents, issues and profits of the said premises, and apply the same to the maintenance and support of herself and said minor children, until the youngest of said children has attained her majority; and when the youngest of said children is of legal age the said trustee to convey to each of said children the one-fifth (1-5) part or interest in and to the said premises and every part thereof, and to have and take the one-fifth (1-5) part thereof to herself in fee free from the trust aforesaid, the intention hereof being that the said property shall be kept together, managed, and controlled by the said party of the second part until the youngest of said children is eighteen years of age, and then divided equally between the said party of the second part and said children, share and share alike.” On September 8, 1881, Mrs. Patchett, by a deed duly executed and recorded, and expressing a consideration of one dollar, conveyed to a railway company a right of way for a railroad across the said tract of land, the strip described being sixty feet wide, etc., and the same strip now claimed by the defendant. Shortly after the execution of the last-named deed, the defendant succeeded to all the interest acquired by the grantee thereunder, and ever since 1882 it has had the said strip of land “ fenced on each side, and during all said time has used the same for the purposes mentioned in said conveyance of September 8, 1881, placing valuable improvements