In Keane v. Cannovan there was no testimony offered with the deed to show that the grantor had title, or that he ever had possession of the premises, either actual or constructive; yet, this Court held the deed admissible to establish the extent and boundaries of the grantee's possession.Summary of this case from Walsh v. Hill
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 21 Cal. 291 at 304.
Appeal from the Twelfth Judicial District.
This was an action of ejectment to recover a lot of land situated within the City and County of San Francisco. The complaint was filed April 10th, 1860. On the trial the plaintiff introduced and gave in evidence the following instruments.
1. A power of attorney from J. B. Bayerque to Francois L. A. Pioche, dated August 20th, 1859, authorizing and empowering the said attorney to sell and convey the premises in controversy.
2. The deed of the premises from J. B. Bayerque, by Pioche his attorney, to the plaintiff, acknowledged and recorded March 23d, 1860.
3. The judgment and decree of the District Court, entered on February 11th, 1857, in an action wherein J. B. Bayerque was plaintiff, and Sothereo Driard and Jean Branger and others were defendants, which action was brought to foreclose a mortgage executed by the defendants Driard and Branger, covering the premises in controversy, and by which judgment and decree the premises were ordered to be sold to satisfy the amount found due to the plaintiff in said action, the holder of the mortgage, which amount exceeded $ 4,000.
4. An order, dated February 18th, 1857, issued upon said judgment and decree out of the said Court under the seal thereof, directed to the Sheriff of the City and County of San Francisco, directing a sale of said premises.
5. The certificate and return of the said Sheriff upon said order, showing a sale of said premises on the twelfth of March, 1857, and the purchase of the same at said sale by the said J. B. Bayerque.
6. A deed embracing the premises in controversy executed by the Sheriff to the said Bayerque, bearing date Sept. 14th, 1857.
7. A deed embracing the premises in controversy executed and delivered by Francois Mondolet to the said Driard and Branger. dated March 3d, 1853, and which was duly acknowledged and recorded on the same day.
8. A deed from Philip Ramirez to Francois Mondolet covering the premises, bearing date April 3d, 1851, and recorded January 24th, 1852.
The plaintiff then proved that Mondolet was in the possession of the premises in the latter part of 1850 and the first part of 1851; that he had a two story frame building on the premises in which he kept a restaurant, which was carried on by himself; that he occupied the premises up to June, 1851, when the building was burned down; that the defendants were in possession of the premises at the commencement of the action, and that the value of their use and occupation since then was fifty dollars per month.
On the part of the defendants it was proved that Dumartheray, one of them, went into the possession of the premises in the summer of 1852, and that he and parties claiming under him have continued in the possession ever since. After producing the tax deed of 1851, mentioned by the Court in its opinion, the defendants offered to prove the payment of taxes on the lot by Dumartheray since 1852, except for the years 1857 and 1858, as evidence of his claim as owner of the premises, and to show an abandonment of them by Mondolet. Upon objection of the plaintiff, the proof offered was excluded and the defendants excepted. The defendants also offered to prove the value of the improvements upon the premises, but upon objection of the plaintiff the proof was excluded on the ground that there was nothing in the pleadings to authorize its introduction. The answer did not make any reference to the existence of any improvements upon the premises.
The Court charged the jury as follows: " That the question before them was one of prior possession, as neither party showed any documentary title from the city; that if they find that Mondolet was in possession prior to the defendants' possession, it was sufficient to maintain the action unless that possession was abandoned; that the question of abandonment was one of intention of which they were to judge exclusively; that in order to do so, they must take into consideration all the facts and circumstances before them in evidence; that the Van Ness Ordinance had no application at this time to determine the cause in favor of either party in this suit."
The plaintiff obtained a verdict. A motion for a new trial was made on various grounds, and among others for alleged insufficiency of the evidence to justify the verdict, and was overruled. All other material facts appear in the opinion of the Court. The defendants appeal.
I. The Court erred in allowing the deed from Ramirez to Mondolet to be read in evidence when no title was shown in the former. (Innes v. Steamer Senator , 1 Cal. 462; Mateer v. Brown, Id. 224.)
II. The Court erred in refusingto allow the tax deed of Buckingham, the Treasurer of the County of San Francisco, to Dumartheray, and the complaint in the case of Mondolet v. Dufan, to be read in evidence.
1. These papers showed the title had passed to the defendant by virtue of the tax deed. (Jackson v. Philips, 9 Cow. 110; Hartwell v. Root, 19 John. 345; Sternberg v. Heoffer , 11 Id. 513.)
2. Said deed being ten years old, the correctness of all proceedings in the assessment and sale of the lot, coupled with defendants' possession, were to be presumed. (Matthews' Presumptive Evidence, 271-277; Johnson v. Emerson, 4 Pick. 160; Thomas' Lessee v. Horlacker, 1 Dal. 14; Green v. Covillaud , 10 Cal. 331; Brown v. Covillaud , 6 Id. 571.)
3. Said deed, together with said complaint offered, constituted an admission of title in the defendant Dumartheray. (Hurtler v. Hays , 3 Cal. 306; Tartar v. Hall, Id. 266; Parke v. Kilham , 8 Id. 79; Burnett v. Dickinson, Id. 115; Mitchell v. Reed , 9 Id. 205; McGee v. Stone, Id. 606; Snodgrass v. Ricketts , 13 Id. 662.)
4. Said deed and complaint constituted a color of title in Dumartheray, and were evidence toshow that Dumartheray entered and claimed as owner and therefore good against a mere prior possessor. (Livingston v. Peru Iron Co., 9 Wend. 511; 8 Cow. 589; 13 John. 120; 9 Id. 180; 2 Caines, 183; 5 Serg. & R. 354; 2 Mason, 536; Gregory v. Haynes , 13 Cal. 595; Hubbard v. Sullivan , 18 Id. 508.)
III. The Court erred in refusing to allow the defendants to prove the payment of taxes as evidence of ownership, or of abandonment by Mondolet, also the value of the improvements. (Ford v. Holton , 5 Cal. 21; Welch v. Sullivan , 8 Id. 202, 511.)
IV. The Court erred in refusing to allow the tax deed by Patch, Tax Collector, to be read in evidence, on account of the insufficiency in the description of the premises recited in the deed. (1 Selden, N.Y. 236; Dana v. Fiedler, 2 Kern. 40; Sharp v. Spier, 4 Hill, 76; Talman v. White, 2 Coms. 66; 13 How. 18; Kelsey v. Abbott , 13 Cal. 609; Lackman v. Clark , 14 Id. 131; Patch v. Moore , 12 Id. 265.) The defendants had the right to show by parol the meaning of the figures " 12x100" in the description in the tax deed. (Story on Cont. 677; 10 Texas, 546; 13 B. Monroe, Ky. 477; 16 Missouri, 210; 13 Ill. 708; 2 Kern. 40; 4 E. D. Smith, N.Y. 215.)
V. The Court erred in charging the jury that the question of abandonment was a question of intention in this case, and exclusively a question of fact, and that the Van Ness Ordinance had no operation in favor of the defendants to the action. (Davis v. Butler , 6 Cal. 510; 1 Watts, 46; 5 Id. 13, 173, 284, 359; 1 Serg. 120; Whitney v. Wright, 15 Wend. 171; 10 Cal. 331; Wolf v. Baldwin , 19 Id. 306.)
VI. The Court erred in refusing a new trial for the insufficiency of the evidence to justify the verdict.
Earl Bartlett, for Appellant.
H. S. Love, for Respondent.
I. It was clearly proper for the Court not only to allow the plaintiff to prove that Mondolet was in possession, but that he entered under color of title, and while so being in possession he claimed under color of title.
II. There was no error in refusing to allow the tax deed from Buckingham to Dumartheray to be read in evidence. The statute of 1857 has no application to the Buckingham deed given in 1851. (Beekman v. Bingham, 1 Seld. 366; Stryker v. Kelley , 2 Denio, 323; Varick v. Tallman, 2 Barb. 113.) As no title passed by the deed, no presumptions will be indulgedin by reason of the deed " being ten years old." The complaint in the case of Mondolet v. Dufan was inadmissible for any purpose, and was clearly inadmissible as constituting an admission of title in the defendant Dumartheray.
III. There was no error in the Court refusing to allow the defendants to prove the payment of taxes by Dumartheray for a portion of the time in which he had been in possession. Dumartheray could acquire no title by so doing. In equity he was bound to pay them, and the payments are to be regarded as advancements for the benefit of the owner. (Kelley v. Abbott , 13 Cal. 619.)
IV. The Court properly refused to allow the defendants to prove the value of their improvements by way of " set-off," no improvements having been pleaded.
V. There was no error in the Court refusing to allow the tax deed from Patch, Collector, to be read in evidence. (Sharp v. Spier, 4 Hill, 76, 90, 91; Sharp v. Johnson, Id. 102, 103; 2 Comst. 170-172; 2 Barb. 344; 4 Denio, 237; Blackwell, 151-154, 330; Id. 450, sec. 16; 4 Hill, 76-91, et seq.; 8 Cal. 344; Tallman v. White, 2 Comst. 66; Lessee of Perkins v. Dibble, 10 Ohio, 433; Burchard v. Hubbard et al. , 11 Id. 316.)
VI. The recitals of the deed from Patch, Tax Collector, were insufficient for any purpose. (1 McLean, 321; Gould's Pl. 189, sec. 29, 3d ed.; 1 Comst. 79; 13 Cal. 609; Loher v. Latham , 15 Id. 418-420.)
VII. The tax deed from Patch, the Collector, was not prima facie evidence of the facts therein contained. (Ferris v. Coover , 10 Cal. 589, 632, 633; Kelsey v. Abbott , 13 Id. 609, 619; Lackman v. Clark , 14 Id. 131; 2 Comst. 66; 2 Denio, 323; 1 Seld. 366; 2 Barb. 113.)
VIII. There was no error in the Court refusing to allow the defendants to show by parol testimony the meaning of the figures 12x100. (Blackwell, 152-154 note.)
IX. The Court committed no error in submitting the question of abandonment to the jury, and in charging the jury that the Van Ness Ordinance had nothing to do with this case. (10 Cal. 589; Act of Assembly of Penn., passed Dec. 30th, 1786; 1 Watts, 46-49, 52; 1 Serg. & R. 120; 5 Serg. & Watts, 284-301; 4 Yeates, 534; Whitney v. Wright, 15 Wend. 171; 8 Cal. 144, affirmed in Id. 223; 9 Id. 5; 10 Id. 183, and cases there cited by respondent's counsel; Laws of 1858, 54, sec. 9.)
X. Dumartheray couldacquire no title under the tax deed from Patch to Bartlett, his grantor. (Blackwell, 460-471; 10 Cal. 609; 22 Maine, 371; 12 Ill. 442.)
XI. The tax deed from Buckingham to Dumartheray being nine years old, is not to be regarded as an ancient deed, and nothing will be presumed in relation to it. (6 Wheat. 119; Blackwell, 48, 88, 89, 604; Allen v. Smith, 1 Leigh, 231; 4 Hill, 86; 4 Wheat. 77, et seq.; Thatcher v. Powell , 6 Id. 119; Blackwell, 619; Ex parte Newman , 9 Cal. 526.)
JUDGES: Field, C. J. delivered the opinion of the Court. Cope, J. and Norton, J. concurring.
The appellants applied for a rehearing on the grounds:
1st. That the Court had not in its opinion passed upon the question whether the tax deed, under which Dumartheray entered and which was found invalid, was or was not sufficient to constitute a color of title, and therefore a good defense to prior possession.
2d. That as against the defendant Cannovan the judgment should be modified, so that no damages for the value of the use and occupation should be recoverable against him, as it appeared from the record that he was a tenant of Dumartheray and paid rent to him.
Field, C. J. delivered the opinion of the Court on the petition. Cope, J. concurring.
The possession of Mondolet was evidence of seizin in fee in him, and no further or higher evidence of title was required to enable the plaintiff, claiming through him, to recover, until the defendant had shown an anterior possession or had traced title from a paramount source. (Day v. Alverson, 9 Wend. 223; Hill v. Draper, 10 Barb. 458.) It is immaterial in this view whether we consider the tax deed to Dumartheray sufficient to constitute color of title or otherwise.
The fact that Cannovan was a mere tenant of Dumartheray, and had paid rent for the premises, does not release him from liability to the plaintiff. The action of ejectment lies only against the occupant of the premises, and to him the plaintiff must look for compensation for their use. If Cannovan has already paid the rent, he can have recourse upon his landlord for any further sum he may be compelled to pay by the present action.