Zilmer v. Gerichten

California Supreme Court Jan 21, 1896 No. No. 15920Published

Before: Vanclief

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Holding. The court held that the trial court erred in granting a nonsuit because the administrator's deed was improperly excluded and the plaintiff's evidence of prior possession established a prima facie case of title against the defendants.

Issues

Whether the trial court erred in excluding an administrator's deed based on alleged procedural irregularities in probate proceedings.
Whether the plaintiff's evidence of prior actual possession was sufficient to defeat a motion for nonsuit in an action to recover land.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“I think the court erred in sustaining defendant’s objection to the administrator’s deed to Wheeler.”

Synopsis

Ejectment—Evidence—Estates of Deceased Persons—Deed of Administrator—Probate Sale — J urisdiction—Irregularities—Collateral Attack.—In an action of ejectment, evidence of an administrator’s sale and deed to the plaintiff’s grantor from the estate of a deceased person, is improperly excluded, when the record of the proceedings in the prohate court shows that it acquired jurisdiction of the subject-matter of the petition for the order of sale, and of all persons interested therein; and no mere irregularities or errors in the exercise of jurisdiction could invalidate the sale or deed to the extent of making them vulnerable to collateral attack, or inadmissible in evidence as proof of title acquired from the estate of the decedent.

Td.—Prior Possession of Plaintiff—Recovery against IntruderNonsuit__When the evidence for the plaintiff in an action of ejectment tends to prove prior actual possession of the demanded premises by the plaintiff, such prior possession is prima facie evidence of plaintiff’s title, as against an intruder, who shows no better right; and it is improper to grant a nonsuit in such case.

Id.—Nonsuit—When Improper.—A nonsuit should be denied when there is any evidence tending to sustain plaintiff’s ease, without passing upon the question as to the sufficiency of such evidence.

Vanclief, C. Action to recover from the defendants the possession of a small piece of land containing two and a half acres, to which the plaintiff claims ownership and the right of possession. The defendants deny the alleged ownership and right of possession, and allege that they own the demanded premises and are rightfully in possession thereof.

At the close of the evidence on the part of plaintiff the defendant moved for judgment of nonsuit and their motion was granted. Plaintiff appeals from the judgment and from an order denying his motion for a new trial, and contends that the court erred in granting the nonsuit and also in rejecting evidence offered by the plaintiff.

No brief has been filed in this court on behalf of respondents, and although I have endeavored to supply that deficiency so far, at least, as the labor of counsel may be properly imposed upon the court, the result is, possibly, not so favorable to respondents as it might have been if such labor had been performed by their counsel.

Plaintiff put in evidence a United States patent, dated May 20, 1872, granting to F. E. Bailey lots numbered 1, 2, and 3, section 31, township 10 south, range 1 west, Mount Diablo meridian, and parol testimony tending to prove that the demanded premises were wholly within said lot No. 3; then introduced, without objection, a deed dated December 8, 1882, from Henry C. Wheeler, granting to plaintiff said lot No. 3.

[75]Plaintiff next offered a deed dated July 8, 1873, from F. E. Bailey, as administrator of the estate of William Watson, deceased, to Henry 0. Wheeler, for said lot Ho. 3, together with the record of proceedings in the probate court in the matter of the estate of Watson, by which it was claimed said administrator was authorized to sell said lot Ho. 3.

Defendants objected to said administrator’s deed to Wheeler on the alleged grounds: 1. That it did not appear that the order to show cause why the sale should not be made was published as required by law; 2. That the notice of sale was not published for the time required by law and the order of the court; 3. That “ no notice of hearing the report of said sale was given, and no order of court made fixing the date of said hearing.” The court sustained the objection and excluded the administrator’s deed to Wheeler.

Plaintiff also introduced evidence tending to prove that Wheeler was in possession of the demanded premises at the time he conveyed the same to plaintiff; and that plaintiff was in actual possession thereof, by having inclosed the same with his adjoining land, during the winter of 1892-93, prior to the commencement of this action. And there was no evidence tending to prove prior possession by the defendants, or that they had any kind of title to the demanded premises.

Zilmer v. Gerichten

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