Millett v. Lagomarsino

HAYNES, C. This action was brought by the plaintiffs to quiet title to lot 2 in block 22 of the ‘ ‘ City Extension Home[884]stead Association,” at some place not named either in the pleadings or judgment otherwise than that it is in the county of San Mateo. The complaint is in the usual form, alleging that plaintiffs are the owners in fee, and entitled to the possession. The answer denies the ownership and title of the plaintiffs, and alleges title in John B. Cron an, one of the defendants, and that Lagomarsino is in possession under a contract of purchase upon which partial payments had been made, and that he had erected a dwelling-house thereon. The court made the general finding that all the allegations of the complaint are true and the allegations of the answer untrue, and entered a decree quieting plaintiffs’ title, and awarding them possession. The defendants appeal from the judgment and an order denying a new trial.

The lot in question is one hundred feet square, and is one of many lots comprising together about ten acres, which, with other lands, were subdivided by said association (a corporation) prior to 1873. Plaintiffs claim title by adverse possession, and whether they have such title is the ultimate question. In November, 1873, Michael Millett, the grantor of plaintiffs, entered into possession of the ten acres above mentioned, under a lease for three years, executed by McNear -and nine others, owners of lots, McNear being then president of the association. The whole ten acres were inclosed by a fence, none of the lots therein being separately fenced. The lot in question was sold and conveyed by the association in 1870 to John Tenney, under whom defendants claim, but Tenney did not sign the lease. Defendants claim that the possession so taken by Millett of the whole parcel was continued from that time until he conveyed to the plaintiffs in March, 1892. Tenney conveyed the lot in question to defendant Cronan in August, 1889, and Lagomarsino entered under him in the latter part of 1890, or early part of 1891, and built a house thereon; and Michael Millett conveyed by quitclaim to the plaintiffs March 14, 1892. On July 24, 1882, Jason Wight executed and delivered to Michael Millett a quitclaim deed of said lot, Wight claiming to have purchased it at a sale for delinquent taxes in February, 1878. The only evidence that a tax deed was ever issued to him was the assessment-roll, showing the lot assessed to John Tierney (not Tenney), and the tax-sale book, in which was a memorandum that “deed issued March 6, 1879.” [885]