Tuffree v. Polhemus
Before: Garoutte
Synopsis
Adverse Possession — Statute of Limitations — Patent Confirming Mexican Grant.—The statute o£ limitations does not commence to run against parties claiming under a patent confirming a Mexican grant until the date of the issuance of the patent, if the adverse claimant does not show the existence of a perfect grant prior to the issuance of the patent.
Id,—Payment of Taxes—Agreement.—Payment of taxes by the adverse possessor is essential to the obtaining of title by adverse possession, and the adverse claimant cannot rely upon an agreement by one of the parties against whom the patent is invoked, promising to pay the taxes for the possessor.
Quieting Title—Equitable Title—Pleading—Proof—Objection upon Appeal.—Where the plaintiff relies upon an equitable title in an action to quiet title, objection to the sufficiency of the complaint in stating the facts showing the equitable title cannot be taken for the first time upon appeal, where the evidence showing the equitable title of plaintiff was admitted without objection.
Id.—Rights of Holder of Equitable Title—Construction of Code.— Under section 738 of the Code of Civil Procedure the holder of an equitable title has the right to come before the court in an action to quiet title and have his equities declared superior to any and all opposing equities; although, as a general rule, the possessor of an equitable title cannot bring an action to quiet such title against the holder of a legal title.
Id.—Executed Parol Gift.—An executed parol gift of land by a father to his daughter vests in her his interest in the land.
Id.—Executed Parol Partition.—Land in this state may be partitioned by parol; and where the title is held by a mere naked trustee, and the cotenants, who are the beneficiaries, entered into a verbal agreement that they would each select a section from among the lands comprising the tract, and that such selection, so made, should be owned by the person selecting in severalty, and under this agreement possession was taken of a selected section by one of the cotenants which was given by him to his daughter, who maintained the exclusive possession for many years, cultivated it and made valuable improvements thereon, and such cultivation and improvements were known to the trustee and to all the coteuants, the facts show an executed parol partition.
Id.—Ratification of Selection.—Where it was originally agreed that whatever selection was made by any of the cotenants should belong to them in severalty, there is no necessity for a ratification after the selection is made; nor is it necessary that they should know that the land had been selected, or subsequently agree that it should be owned by the cotenant selecting it, or by his donee in severalty.
Garoutte, J This action was brought to quiet title
to a tract of land containing six hundred and forty acres. The complaint is in the usual form, and contains the additional allegation that plaintiff, Mrs. Tuffree, had been in the open, notorious, peaceable, continuous, and adverse possession of the tract for more than fifteen years. The answer denied the allegations of the complaint, and alleged that by a tripartite indenture, executed in 1868, between Abel Stearns and his wife, of the first part, Alfred Robinson, of the second part, and Samuel Brannan, E. F. Eortham, Charles B. Polhemus, Edward Martin, and Abel Stearns, parties of the third part, they, Stearns and wife, conveyed to Robinson certain lands, including the lands here involved. The lands so conveyed were several Mexican grants, containing more than one hundred thousand acres. The deed was made to Robinson, in trust, to hold possession, and sell and convey upon such terms and in such quantities as he might see fit, with the consent of the parties of the third part.
In the findings of fact the trial court declared: “That about the time of the execution of the indenture the beneficiaries (parties of the third part) did enter into a
verbal agreement that they would each select a section [674]from among the lands, and that these selections so made should be owned by the persons selecting in severalty, their object being to demonstrate, by planting and cultivating, the productiveness of the soil.” The court further found that under such agreement Polhemus made a selection of the land here in dispute; that this selection was made in the year 1872, and Polhemus verbally stated to his daughter, plaintiff Tuffree, that he gave her the land; and she, relying upon such statements and representations, with his consent and approval, took possession thereof with her husband, cultivated and improved the same, and has been living thereon since that time. The court further found that neither Robinson nor any of the parties of the third part, except Polhemus, knew that Mrs. Tuffree was holding and claiming the land under the gift from Polhemus, nor did they know that Polhemus had selected this particular land under the agreement aforesaid. At this time Polhemus owned one-fourth of all the land conveyed to the trustee, Robinson. During all the time since 1872 plaintiffs have cultivated the land, and have made improvements thereon to the value of seven thousand dollars, with the knowledge of the trustee and the parties of the third part; and during said time plaintiff, Mrs. Tuffree, has claimed said land, and asserted that she owned the same under an agreement with her said father, Polhemus. The court further found: “ That the trustee had paid the taxes, and the premises constituted a portion of a Mexican grant, and that a patent therefor had issued on the 21st of May, 1877.”
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