Freer v. Tripp

ROSS, J. The plaintiff in his complaint alleges that he and the defendant are the owners as tenants in common of a certain tract of land containing one hundred and twenty-seven acres, or thereabouts, and being a portion of the Rancho Cañada de Raymundo, situated in the county of San Mateo; that the* defendant excludes the plaintiff from the possession, wherefore the latter sues to be let into possession with him. The answer puts in issue all of the averments of the' complaint, and in addition sets up a former adjudication by the same court of the same issues, in an action between the same parties, in defendant’s favor, and also pleads the statute of limitations in bar of plaintiff’s recovery.

On the trial the plaintiff introduced: 1. A patent from the government of the United States to Maria Louisa Greer and Manuello Copinger, for the rancho mentioned, of date July 19, 1859. 2. A deed from John Greer and Maria Louisa Greer, his wife, of date March 1,1858, conveying to the defendant ■ and one Parkhurst all of the interest of the grantors in and to one hundred and twenty acres of the Rancho Cañada de Raymundo and being a part of the land described in the complaint. 3. A deed from the same grantors to the same grantees, of date December 2, 1858, conveying all of the interest of the grantors in and to the remainder of the land described in the complaint. 4. An admission that defendant had acquired the interest of Parkhurst in the land described in the two deeds mentioned. 5. A deed of date July 27, 1866, from Copinger to one Soto, granting to the latter the undivided one-half of the land described in the deeds already mentioned. 6. A deed from Soto to Robert Greer, of date February 26, 1869, conveying the same undivided half interest to Robert Greer. 7. A [93]deed from Robert Greer to the plaintiff, of date October 15, 1872, conveying to 'him the undivided half interest in the lands described in the deed from Copinger to Soto, to wit, the lands described in the complaint.

John Greer was sworn and testified on behalf of the plaintiff that the defendant “went into possession of the land described in 1850 and 1852, inclosed it with a fence all around, and has occupied it ever since, using it for a residence, and cultivating, farming and stock raising on it. I never heard of defendant making any claim to the land in question adverse to the plaintiff or those under whom he claimed title.”

The plaintiff then offered in evidence “the judgment-roll in case No. 900 of this court, being the suit of the same plaintiff against the same defendant, stating that he did so for the sole purpose of showing from the answer in said suit an ouster and denial of plaintiff’s title by the defendant, and read from said answer as follows: Now comes the above-named defendant, and answering to the amended complaint filed in this cause, denies that the plaintiff and defendant are owners in fee and tenants in common of the lands described in plaintiff’s complaint, or of any interest therein; and avers that the defendant is, and has been for more than five years previous, the sole and legal owner of said land in his own right.”