Brown v. McKay

GAROUTTE, J. This is an action of ejectment brought by the assignee in insolvency against the defendant Angus McKay, who was also the insolvent debtor. The facts are these:

Mrs. Mary A. McKay, wife of David McKay, died in 1859, leaving two sons—this defendant Angus McKay, and David Me-[293]Kay, Jr., this defendant then being of the age of five years, and David being still younger. At the time of her death she was the owner of a piece of property in the city of San Francisco, described in this record as the “Dupont street property,” and she also possessed a community interest in the piece of property here designated as the “Davis street property.” As heirs-at-law of their mother an undivided one-third of the Dupont street property passed to each of the sons, and likewise an undivided one-fourth of the Davis street property. In 1883, defendant Angus McKay was adjudged an insolvent debtor, and his estate was administered upon; the debtor was discharged from his debts and thereafter the then assignee died. Ko part of the real estate here mentioned was included in the assets of the insolvent’s estate. In 1894 David McKay, the father, died, leaving a will. Upon his death it first came to the knowledge of the sons that, as heirs of their mother, they became the owners of the aforesaid interests in the two described tracts of land. Pending the administration upon the father’s estate, Angus McKay took out letters of administration upon his mother’s estate, and this property under such administration was finally distributed to the sons in the proportions aforesaid. Thereafter this plaintiff was appointed assignee in the insolvency proceedings to succeed his dead predecessor, and now seeks by ejectment to recover the possession of defendant’s interest in the land inherited by him from his mother.'

The only defense made to this action is the plea of the statute of limitations, defendant now claiming that his father, prior to his death, 'obtained title to the property here involved, by adverse possession. The trial court declared the facts in accordance with this claim and rendered judgment for defendant. This' appeal is taken from that judgment and also from the order denying a motion for a new trial.

Upon a careful examination of the record, the court has arrived at the conclusion that the facts to support the claim of adverse" possession in the father are too meager to accomplish that result. The case, in its facts upon the question of adverse possession, is a peculiar one, viewed from various standpoints. It is peculiar in "this": Defendant Angus McKay, during the period dating from his mother’s death, 1859, to his father’s