Smith v. Byer

PAULSEN, J. pro tem.* Appellant commenced this action to quiet title to property in the city of Richmond and relied on five years adverse possession. The court rendered judgment in favor of respondent on the sole ground that appellant had not paid all taxes that had been levied and assessed upon such land. The appeal is from the judgment.

[119]Respondent concedes that if appellant paid the taxes in full he must prevail.

The applicable statutory law is found in section 325 of the Code of Civil Procedure, and reads:

“Por the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following eases only:

“1.—Where it has been protected by a substantial inclosure. “2.—Where it has been usually cultivated or improved.“Provided, however, that in no case shall adverse possession be considered established under the provision of any section or sections of this Code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, State, county or municipal, which have been levied and assessed upon such land. (Enacted 1872. As amended Code Am. 1877-1878, c. 590, p. 99, § 1.) ”

It is admitted that appellant had undisputed possession of the property from October 19, 1949, until October 18, 1954; that he paid all the county taxes levied and assessed during that period; that he paid all city of Richmond taxes levied and assessed during that period except the last installment for fiscal year 1954-1955; that the city property was assessed on the first Monday in March, 1954, and the levy was made September 1, 1954; that under the city ordinance the first installment became due November 1, 1954, and the second installment became due February 1, 1955; that both installments could have been paid November 1, 1954.

It is further admitted that because of failure to pay the second installment, it became delinquent and the land was sold to the city; that on December 2, 1955, the property, which had at all times been assessed to Noena Byer, respondent’s predecessor in interest, was redeemed by respondent.

Appellant ‘‘contends that since his full five years of adverse possession matured on October 18, 1954, and since the 1954-1955 City of Richmond taxes could not be paid until November 1, 1954, appellant’s adverse title to said property ripened on October 18, 1954, without payment of those taxes.”