S.F. No. 5324.
March 19, 1910.
APPEAL from a judgment of the Superior Court of Alameda County. Henry A. Melvin, Judge.
The facts are stated in the opinion of the court.
R.E. Hewitt, for Appellant.
E. Huffaker, for Respondent.
Appeal by defendant from a judgment quieting plaintiff's title to three parcels of land in Alameda County. The evidence is incorporated in a bill of exceptions.
The fifth amended complaint, upon which, with the answer thereto, the action was tried, alleged that on December 23, 1896, plaintiff was seized and possessed of, and ever since has been and now is the owner in fee simple absolute of the lots in controversy; that on December 23, 1896, plaintiff executed and delivered a deed of said land to the defendant, his uncle, with the understanding that said defendant would reconvey the same upon request; that said conveyance was made at the request of defendant, "and for the further reason that the plaintiff at said time was suffering mentally and physically from injuries received some two years prior to said time by a horse falling upon him." It was further alleged that there was no consideration for the deed; that ever since its execution, plaintiff had held possession of said lands against the defendant and the whole world, and for five years had paid all taxes levied and assessed upon said lands, and had "improved and treated said real estate as his own, without a suggestion or an objection from any one in the world." The refusal of the defendant to reconvey on request is averred, as is the fact that he claims an interest in the property adverse to plaintiff, such claim being, as is alleged, without right.
A demurrer to this complaint was overruled. Of the various grounds of demurrer specified, but one, i.e., the want of facts sufficient to constitute a cause of action, is here argued. The contention of appellant is that the plaintiff cannot, by the mere averment of an oral agreement that the title conveyed should be held in trust for him, or be reconveyed to him, overcome the effect of his deed of December, 1896. In the absence of a confidential relation or of facts raising a trust by operation of law — and it is plain that this complaint sets up no such case — a trust cannot be imposed upon the grantee under an absolute deed unless it be declared by a writing. (Feeney v. Howard, 79 Cal. 526, [12 Am. St. Rep. 162, 21 P. 984]; Babcock v. Chase, 111 Cal. 351, [43 P. 1105]; Sheehan v. Sullivan, 126 Cal. 189, [ 58 P. 543].) The language of this complaint would seem to indicate clearly that there was no intent to rely upon a writing, and that the alleged agreement to reconvey was verbal. In any event, there was no proof of a writing, and the decree cannot, if the complaint may, be sustained on the theory that the title to the property was held by the defendant subject to a trust in favor of plaintiff. Furthermore, a finding of ownership in a plaintiff suing to quiet title is not sustained by proof that the defendant owns the legal title, subject to an equity in favor of plaintiff. (Buchner v. Malloy, 155 Cal. 253, [ 100 P. 687], and cases cited.)
But, independently of every allegation concerning the deed, the complaint contains a statement of all the facts necessary to constitute a cause of action. It avers that plaintiff is the owner and in possession of certain land, that defendant claims an interest therein adverse to plaintiff, and that such claim is without right. Here we have every element of a complaint to quiet title. (Code Civ. Proc., sec. 738.) Furthermore, if we read with these facts the averment that plaintiff made a deed to defendant in 1896, the cause of action is not destroyed. The plaintiff may have acquired a perfect title by adverse possession after the execution of the deed, and, in fact, the complaint undertakes, by separate averments, to set up such acquisition of title.
The court found, in general terms, that "all the allegations and averments of plaintiff's complaint are true." It is objected that this is a finding in favor of the facts alleged in the original, rather than in the fifth amended complaint. We think this suggestion hypercritical. Each of the pleadings in question was a complaint, and the finding should be taken as intended to refer to the complaint on which the case was tried. The answer, mentioned in the same finding, was the answer to that complaint.
There are various specifications of insufficiency of evidence to support findings, but, in view of what we have said concerning the complaint it will appear to be unnecessary to do more than to examine the evidence on the question whether plaintiff acquired a title by adverse possession. As he was not claiming under a written instrument, a judgment, or a decree, the elements necessary to constitute adverse possession are those set out in section 325 of the Code of Civil Procedure. Under that section the land must be either: 1. Protected by a substantial inclosure; or 2. Usually cultivated or improved. There is no showing in the record that any of the three lots in question was either inclosed or cultivated. On the other hand, there was evidence tending to show that, for more than the statutory period, improvements had been maintained by plaintiff on each of the three lots. The requirement of the statute that the land be "usually cultivated or improved" means that it should be cultivated or improved in the manner or to the extent usual in the case of similar property. (Allen v. McKay, 120 Cal. 332, [52 P. 828].) If so improved, it is not necessary that it should be either cultivated or inclosed. (Daniels v. Gualala M. Co., 77 Cal. 300, [19 P. 519].) While the evidence on the point is not very full, there is nothing in the record to indicate that the plaintiff's improvements on the lots in question were not such as to comply with the statute. The plaintiff testified that he had, from December 23, 1896, to the date of the trial, held actual possession of all the property. This testimony was proper as tending to prove actual occupancy (Nathan v. Dierssen, 146 Cal. 62, [ 79 P. 739]), and, in the absence of a clear showing that the improvements relied on were inadequate, is sufficient to support the finding under consideration.
The plaintiff's further evidence, if true, showed that his possession was both hostile and exclusive. It was contradicted by the defendant's witnesses, but, as we have so often said, a conflict of testimony presents a question which is to be answered finally in the trial court.
It is urged that the other requirement of section 325 — viz. payment of taxes for five years — was not shown. But the evidence was ample on this point. The plaintiff introduced tax-receipts showing the payment of all taxes assessed on two of the lots for more than the statutory period. On the third lot, the taxes had been paid by Mary Walker, a witness for defendant. But plaintiff testified that he had given her the money to pay these taxes, and that she had kept the receipts, for the reason that she owned an adjoining lot, which was assessed with the one claimed by plaintiff. This was, in effect, a payment by plaintiff.
The fact that, in one year, the land was sold for delinquent taxes, and subsequently redeemed by plaintiff, did not prevent the acquisition of title by adverse possession. (Owsley v. Matson, 156 Cal. 401, [ 104 P. 983].)
Certain errors in admitting or excluding evidence are specified. The objections, rulings, and exceptions are merely stated in appellant's brief, without any citation of authority or any argument beyond the bald declaration that "in deciding these objections against the defendant the court erred." We do not feel called upon to consider points so presented. (Duncan v. Ramish, 142 Cal. 689, [ 76 P. 661]; Bell v. Southern Pacific Co., 144 Cal. 573, [ 77 P. 1124]; Bird v. Potter, 146 Cal. 286, [ 79 P. 970].)
The judgment is affirmed.
Shaw, J., and Angellotti, J., concurred.