Breon v. Robrecht

McFARLAND, J. This is an action to quiet title to certain lands. Judgment went for defendant—the court finding “that defendant is the owner and seised in fee of all the lands” in contest, and that “plaintiff was not at the time of the commencement of this action, and never was at any time, the owner in fee or otherwise, or at all,” of said lands or any part thereof. The plaintiff appeals from the judgment upon a bill of exceptions which brings up only the judgment-roll and certain admitted facts.

Appellant has no ground for reversal unless this proposition be maintainable, namely: That although an action of ejectment be commenced within the statutory period of limitation, and although such action be prosecuted to a final judgment for plaintiff, and the defendant be evicted under a writ of possession issued under such judgment, still, if the defendant has remained in possession during the pendency of the action, and five years have elapsed from the time at which he first took possession until his eviction under the judgment, then he has acquired a new and independent title by prescription, which he can afterward enforce notwithstanding his eviction under the judgment in ejectment. If that be so, a successful plaintiff in ejectment, although he commenced his action within five years after the beginning of the adverse holding, gains nothing by his suit unless he can so control the machinery of the courts and the conduct of the defendant as to obtain a judgment and the execution of a writ of restitution within five years after the first unlawful entry of the defendant. But this proposition cannot be maintained.

It is true that the mere commencement of an action of ejectment which is afterward dismissed does not disturb an adverse possession. It is true, also, that a judgment in ejectment does not conclude a title acquired subsequently to its rendition; and perhaps it does not conclude a prior title which, owing to the peculiar character of the pleadings, findings, and judgment, is clearly not embraced in the decision—although the general rule, is, that such a judgment concludes every right of possession which the defendant might have asserted under any title which he could have litigated in the action. Neither is it necessary for the purposes of this case, to consider the effect of an unexecuted judg-[471]mont upon adverse possession—as in Carpenter v. Natoma Water etc. Co., 63 Cal. 616. An executed judgment for plaintiff in ejectment, where the suit had been commenced within the period of limitation, is conclusive against the defendant of any asserted right f ounded merely upon his possession either at the time of the commencement of the action or at the time of the judgment. During the pendency of the action he can acquire no new right as against the plaintiff by the mere fact that he remains in possession. During that period his right of possession is sub judice—“before the judge,” awaiting judicial determination (Kirsch v. Kirsch, 113 Cal. 56); and a judgment against him judicially determines that down to the date of its rendition his possession, as against the plaintiff, has been wrongful. This principle is expressly recognized in one of the very authorities cited by appellant—Thrift v. Delaney, 69 Cal. 191—where the court say: “The bar of a judgment in such an action' is, however, limited to the rights of the parties as they existed at the time when it was rendered, and neither the parties nor their privies are precluded by the same from showing in a subsequent action any new matters accruing after its rendition which gave the defeated party a title or right of possession.” In Satterlee v. Bliss, 36 Cal. 514, the court say: “The judgment in the case of Reese v. Mahoney et al. is binding and conclusive upon the Mahone}rs and all parties standing in privity with them, and estops them from denying that Reese was entitled, as against them, to the possession of the premises at the time of the rendition of the judgment.”