Wakelee v. Goodrum

SAWYER, C. J. This is an action to recover possession of a lot situated on the corner of Twelfth, formerly Brown, and Howard streets, San Francisco. On the 7th of August, 1854, one William Sheer executed a deed purporting to convey the premises in question, being two hundred and sixty-eight feet long on Twelfth street by one hundred and forty-five feet wide on the westerly end, and one hundred and twenty-eight feet, nine inches at the other on Howard street, to Biggs, Kibbe, and Overton. At the same time by another deed said Sheer conveyed to said Biggs, Kibbe and Overton another tract adjoining on the westerly end, and extending one hundred and thirty-two feet farther on Twelfth street, making the whole tract embraced in the two deeds four hundred feet long on Twelfth street. Sheer had no title except possession. On the 16th of January, 1855, said Biggs, Kibbe and Overton mortgaged the whole of these two tracts to defendant, Good-rum, to secure payment of the sum of four thousand dollars and interest, at the rate of three per cent per month; mortgage duly recorded on the same day. On the first day of April, 1855, Biggs, Kibbe and Overton executed and delivered to Edward IT. Whiting a deed, purporting to convey to him the first-mentioned tract — the premises in question — which deed was recorded May 4, 1855. On the 25th of July, 1855, Goodrum commenced a suit to foreclose his said mortgage, filing a notice of lis pendens, making the mortgagors parties, but said Whiting was not made a party. This mortgage was regularly foreclosed as to everybody except Whiting, the property sold under the judgment, and purchased by Good-rum, who received the sheriff’s deed, purporting to convey the land including the premises in question, on the 20th of May, 1856. Goodrum soon after entered into possession under said sheriff’s deed, and he has ever since been in the adverse possession, claiming under said conveyance. The land is within the limits of the so-called Van Ness ordinance, and five years have not elapsed since the final confirmation of the city’s claim to title under the Mexican government.

Whiting conveyed on the 1st of May, 1862, to Dibble and Byrne, who, in August following, conveyed to plaintiff. Plaintiff claims through Whiting on the ground that his interest was not cut off by the foreclosure suit. The defendant sets up the statute of limitations, which is clearly a good de[360]fense, unless plaintiff can connect bimself with the title of the city through the Van Ness ordinance. This he attempted to do. The court nonsuited him, but on a motion for new trial, the nonsuit was set aside, and a new trial granted. Defendant appeals from the order setting aside the nonsuit, and the question is, Did the plaintiff make out a prima facie ease? The city of San Francisco by the ordinance referred to, granted all her right and claim to the lands within the corporate limits, “to the parties in the actual possession thereof, by themselves or tenants, on or before the first day of January, A. D. one thousand eight hundred and fifty-five, and to their heirs and assigns forever.....Provided, such possession has been continued up to the time of the introduction of this ordinance in the common council,” etc.: Daws 1858, p. 521. By the terms of the ordinance, it is as essential that the “actual possession” should be continued till the introduction of the ordinance, as that it should have existed on or before the first day of January. On the second lot above described as conveyed by Sheer to Biggs, Kibbe and Overton, fronting one hundred and thirty-two feet on Brown, or Twelfth street, Biggs and Kibbe entered soon after the conveyance to them, and each built a house, and soon after they built a substantial fence around them, the fence on the side toward Howard Street being two hundred sixty-eight feet from Howard Street, separating the premises in question from the said other tract on which said houses were built, the same said two tracts having been conveyed to them by different deeds. Biggs and Kibbe occupied the houses till Goodrum took possession, in March, 1856. This undoubtedly shows an actual possession, in Biggs, Kibbe and Overton, to the tract on which their houses were built. But those acts alone do not extend their possession to the lot in question, which was a different tract conveyed to them by another deed, and which was shut out by the fence they constructed. But they did a little grading and hauled some timber on the premises in question with the intention of building a house for Overton, which intention was never carried out.