Baldwin v. Temple
Before: Haynes, McFarland
Synopsis
Adverse Possession— Payment oe Taxes—Burden oe Proof.—When the plaintiff in an action of ejectment proves a paper title his case is made out, and if the defendant relies upon adverse possession under the statute of limitations he must prove either that no taxes were levied or assessed upon the land, or that he paid all taxes which were levied and assessed thereon.
Id.—Finding Against Evidence.—A finding that the property in controversy was not assessed for taxes, for a specified year, is against the evidence, where it appears that the land assessed by boundaries necessarily included the land in controversy, although there is no evidence that the tract claimed by the defendant was assessed by any separate or specified description in that year.
Id.—Description of Land—Quantity—Boundaries.—Where the whole of a ranch is assessed, the quantity of 'land expressed in acres is mere description, and does not control the more certain description by boundaries, but must yield to boundaries where they do not agree.
Id.—Payment of Taxes by Owner—Presumption.—The payment of taxes by the record owner adds nothing to his title, but it excludes any presumption that it was assessed to, or paid by, the adverse possessor.
Id.—Lease to Possessor—Admission—Adverse Possession.—Where the owner of land accepts a lease from another it does not destroy his title to the land; but where the lessee is in possession without title it is an • admission of the fact, and may be used as evidence tending to show that he did not claim to hold the land adversely to the party from whom he accepted the lease.
Id.—Parol Gift—Adverse Possession.—A parol gift of land from the mortgagor, though invalid as against the mortgagee, is a sufficient basis for the acquisition of a right by adverse possession.
Opinion — Haynes
Haynes, C. The plaintiff brought ejectment. The defendant answered, and also filed a cross-complaint to quiet title to the demanded premises, and plaintiff answered the cross-complaint. The cause was tried by the court without a jury. The findings were in favor of the defendant, and judgment was entered thereon. Plaintiff moved for a new trial, which was denied, and this appeal is from the judgment, and from the order denying a new trial.
No question is made that the plaintiff has the legal title, unless the defendant has acquired title by adverse possession; nor is there any question but that the defendant -was in the exclusive possession of the demanded premises a sufficient length of time to give him title. The question controverted touching the adverse possession of defendant is as to whether taxes were levied and assessed upon the demanded premises for the year 1878. Upon this point the finding of the court is as follows: “ That said property was not assessed for taxes for the year 1878.”
A general statement of the facts of the case is necessary to a clear understanding of the question above indicated.
In 1874 F. P. F. Temple was the owner of the undivided one-half of the Rancho La Merced and the Rancho Potrero de Felipe Lugo, which adjoin each other, the Merced lying on the westerly side of the last-named ranch. The defendant is the son of F. P. F. Temple. The father, it is found, made a survey of a tract of land containing about seventy-five acres, lying partly in each of the said ranchos, which seventy-five-acre tract embraces the- lands in controversy in this action. January, 1874, F. P. F. Temple made a parol gift of the seventy-five acre tract to the defendant. That [399]part of the tract which is in controversy here is a small parcel, the quantity of which does not clearly appear, but containing probably from three to five acres, belonging to the Merced grant, and lying on the westerly side of the line separting the two grants.
It is contended by appellant that the finding above quoted is not justified by the evidence; but that, on the contrary, the evidence shows that it was included in the levy and assessment of taxes upon the Rancho Merced for the year 1878, and each subsequent year. The finding, of course, concedes that the defendant did not pay the taxes upon the lands in controversy for that year, none being assessed; so that the question is as to whether they were in fact assessed. The defendant offered no evidence tending to show whether or not taxes were assessed upon the demanded premises for that year. The plaintiff, however, gave evidence tending to prove that these premises were assessed as a part of the Rancho La Merced for each year from 1876 down to and including the year 1887. The only ground upon which respondent controverts this statement is based upon the various statements as to the number of acres contained in said rancho. This ranch was patented by the United States to F. P. F. Temple and Juan M. Sanchez in 1872, and is there stated to contain 2,363.75 acres. On December 2, 1875, Temple, Sanchez, and Workman mortgaged this rancho with other property to the plaintiff, the mortgage describing it as containing the same number of acres mentioned in the patent. This mortgage was afterwards foreclosed, and in all the proceedings for foreclosure and sale the same number of acres is stated. Defendant was not a party to the foreclosure proceedings.
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