Horn v. Govan

SCHOTTKY, J. Plaintiffs Bertram M. Horn and Lawrence J. Horn filed an action against defendants Orville Govan and Ellen Govan to quiet title to certain real property in Lake County and for damages for the holding of said real property by defendants. Defendants filed an answer admitting that defendant Orville Govan was in possession of said real property and alleging that he had an interest therein and denying that defendant Ellen Govan claimed any interest in said real property. Defendants also alleged that plaintiffs’ action was barred by section 318 of the Code of Civil Procedure.

The ease was tried by the court sitting without a jury, and the court found that plaintiffs were the owners of said real property and entitled to the possession thereof; that defendants had no interest therein; and that plaintiffs’ cause of action was not barred by section 318 of the Code of Civil Procedure. Judgment was entered in accordance with said findings and defendants have appealed from said judgment.

Appellants made a number of contentions, but before discussing them we shall summarize briefly the evidence as shown by the record. Appellant Orville Govan and his brother Roy, who is respondents’ predecessor in interest, gained title to the subject property by decree of distribution from the estate of their brother James Govan in 1944. In 1946 Orville signed á deed conveying his interest in the property to Roy' and his wife. There is substantial evidence to support the finding of the court that this deed was acknowledged by Orville before a notary. The deed was recorded by Roy about a week later. In 1947 Orville moved onto the subject property, and except for a period of about a year and a half when the property was rented, Orville has continued to live on the property during the summers, although he would move into town during the winters as the dwelling was not “winterized.” It was not [80]contended at the trial, nor is it contended on appeal, that Orville has gained any rights by reason of an adverse possession.

By deed dated July 20, 1956, Roy and Ruth Govan conveyed the property to Mr. and Mrs. Tidball. This deed was acknowledged on July 23,1956, and recorded August 10,1956. The Tidballs thereupon granted the property to the Lake County Title Company by a deed also dated July 20th. This deed was acknowledged on July 27th and recorded August 10th. On July 30, 1956, the title company entered into an escrow agreement with the respondents Bertram and Lawrence Horn. On October 18, 1956, the respondents filed this quiet title action. On October 22, 1956, the title company conveyed the property to respondents.