Wilson v. Peterson

McCOMB, J. Plaintiff appeals from an order granting defendants’ motion to dismiss the complaint pursuant to the provisions of section 437e of the Code of Civil Procedure.*

[85]Facts: Plaintiff filed a complaint pursuant to the provisions of section 1060 of the Code of Civil Procedure, whereby she sought to have the court declare that a deed, wherein she and defendant Peterson were named as joint tenants of a parcel of real property, was not in fact a deed of the property in joint tenancy, but was a mortgage given by her to secure a loan of $500 from defendant Peterson. After the answer had been filed defendant filed an affidavit pursuant to the provisions of section 437c, Code of Civil Procedure, and made a motion to dismiss the complaint. In the affidavit, which was not denied by plaintiff, it was alleged that said defendant had been in possession of a portion of the disputed property as a joint tenant since September 3, 1943. The present action was filed March 29, 1949. The trial court granted the motion and judgment dismissing the action was entered.

Question: Was plaintiff’s cause of action barred under the provisions of section 1007, Civil Code, and section 322, Code of Civil Procedure?

This question must be answered in the affirmative. When an occupant of real property enters into possession thereof under claim of title and remains in such possession continuously for a period of five years, such occupant acquires prescriptive title to the property. (Civ. Code, § 1007; Code Civ. Proc., § 322.)

In view of the fact that the uncontradicted statement in defendant’s affidavit demonstrated that he had been for more than five years in continuous possession of a portion of the property in dispute under a claim that he was an owner thereof as a joint tenant, plaintiff’s cause of action, if any, was barred, and judgment was properly entered dismissing [86]the complaint pursuant to the provisions of section 437c of the Code of Civil Procedure.

Rowland v. Clark, 91 Cal.App.2d 880 [206 P.2d 59], relied on by plaintiff, is not applicable to the facts of the present case. Such case involves a discussion of a resulting trust and does not in any way have any bearing upon the statute of limitations.