Hartman v. Reed

CROCKETT, J.- — This is an action under section 254 of the late Practice Act, to quiet the plaintiff’s title to an undivided third of a tract of land in San Diego county. 'In his complaint he sets out the deraignment of his title from Olvera, the grantee of the Mexican government, to whom the title has been finally confirmed; and then proceeds to state the alleged title of the defendant Reed, and of the administrator of the estate of S. J. Crosby, deceased; and prays, in substance, that certain deeds, under which the defendants claim, be set aside, and that it be adjudged that the defendants have no valid title, and that they be restrained from asserting any claim to the property. The administrator of Crosby filed no answer, and judgment was taken against him by default. Reed answered, and on the hearing the court entered a judgment for the plaintiff, from which, and from the order denying his motion for a new trial, Reed appeals to this court.

Before answering, Reed had filed a general demurrer to the complaint, which was overruled; and this ruling is relied upon as error. The principal point made in support of the demurrer is founded on that portion of the complaint which alleges that in the year 1854 Olvera, under whom both parties claim, conveyed to Crosby by absolute deed one undivided third part of the rancho; and that this conveyance remains in force, never having been annulled or set aside. The complaint then avers that in the year 1869 Olvera conveyed to the plaintiff “the same identical one undivided third part” before then conveyed to Crosby, and which is now claimed by Reed under Crosby. The argument is, that the title to this undivided third being in Crosby, the subsequent deed of Olvera to the plaintiff for the same undivided third was ineffectual to pass any title whatsoever, and that the plaintiff has, therefore, stated himself out of court. But the complaint avers that from the year 1859 to the year 1869 Olvera was in the open, continued, notorious and exclusive occupation and possession of said premises, “holding the same adversely to all [860]the world.” If this be true, as it must be assumed to be for the purposes of the demurrer, he had acquired a title under the statute of limitations, which was valid as against his co-tenant Crosby, and those claiming under him: Arrington v. Liscom, 34 Cal. 365, 94 Am. Dec. 722.

It is true that, until the contrary appears, the possession of one tenant in common is deemed to be the possession of his cotenant also. The possession is presumed to have been amicable until it is shown to have been hostile; and the fact that it has become hostile must be proved by the acts and declarations of the tenant in possession; nor will even this suffice to put the statute in motion, unless notice of the hostile acts and declarations are brought home to the cotenant out of possession': 3 How. (U. S.) 674, 11 L. Ed. 778, and cases there cited.