Bird v. Lisbros

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This was an action to recover the possession of premises situated upon public land. On the trial of the cause in the Court [5] below, the counsel of defendant asked the witness, Ralph Bird, the plaintiff’s grantor, c‘ whether he had not relinquished and abandoned all his right, to one Richardson, in July, 1855, and whether Richardson had not taken possession of the premises, by virtue of that relinquishment ?” In the case of MeMinn v. Hays, 4 Cal. R., 209, it was said: “ The prior possession of Williams, the plaintiff’s grantor, was sufficient to maintain a recovery in ejectment.” And, in the opinion of the Court in the same case, it was also said : “ The fair deduction from the record is, that, at that period, the tenancy of Palmer ceased, and, consequently, Williams was entitled to possession, and the acts of Shattuck, as his agent, removes any idea of his abandonment of the premises.” And in the case of Bequette v. Caulfield, 4 Cal. R., .278, the learned Judge who delivered the opinion of the Court said : “ We have often held that possession is evidence of title; but it is equally true, that possession gives a right of action against a mere trespasser, even when title may be shown to exist in another. So, where a party can show nothing but a prior possession, that reliance may fail, if it be shown that he voluntarily abandoned his possession, without the purpose of returning.” In these cases, it is clearly held that prior possession is evidence of title ; and that this evidence may be destroyed by abandonment. And it would seem to be clear that, if a party can acquire a title by possession, he may destroy it by abandonment. If, however, the possession were contined for a period corresponding with the Statute of Limitations, then it might admit of great doubt whether the party could destroy the evidence of his title by simple abandonment. But the question in this case is, whether the defendant, not having connected himself with Richardson’s title, and not having shown that the plaintiff was aware of the alleged abandonment of his grantor, can be allowed to show his abandonment? It was held, in one of the eases cited, that a mere trespasser cannot show title in a third party. This is no doubt true, as a general proposition. But it is not of universal application. For example, we will suppose A has the true title, but not the actual possession of real estate, and B takes possession, and C then ousts B of his possession. In a suit by B to recover possession from C, the latter cannot set up in bar the outstanding title of A. The possession of C gives him a prima facie title; but the prior possession of B proves superior to this prima facie title of C. If it were otherwise, and a mere trespasser upon the prior actual possession of a party could justify his act by showing the true title outstanding in a third person, no party to the suit, then a prior possessor might never gain any repose by virtue of his adverse possession, and could never gain a title under the Statute of Limitations. In the case supposed, were this the rule, 0 could [6] turn out B, and justify; and D, for the samo reason, could, in turn, oust C. The true owner not being disposed to assert his superior title, there could be no repose obtained by the several trespassers, as between themselves. But when the plaintiff in ejectment does not rely on prior possession, but on his strict title, the defendant in possession having a good prima facie right, may set up and show the true title to be in another party. By showing this fact, he proves that the plaintiff has no title with which to overcome that which the law presumes to exist in the defendant by virtue of his actual possession. But this case presents a different question. The defendant did not simply offer to show that there was a superior outstanding title in a third party, but that the grantor of plaintiff, by his own act, had abandoned the premises, and thus destroyed the only evidence of his title. In ejectment, the plaintiff must show title in himself as against the defendant. But when he fails to show any title in himself, he must fail. Suppose that the defendant had proved that Ralph Bird had previously conveyed the property in controversy to another party. He certainly could have done so, and this would have defeated the plaintiff’s action. And if he could have shown that no title was in plaintiff, because of this act of his grantor, he must be allowed to show that, by the act of Ralph Bird in abandoning the premises, there was no title in the plaintiff. In the case of Bird v. Dennison, it was substantially held, that when a party relied upon possession (whether of himself or of his grantors,) as his sole evidence of title, he must be held to know the acts of those through whom he claims; and that the actual adverse possession of a party, at the time the deed was made, was notice to the purchaser. The purchaser is bound to know the chain of title through which he claims ; and if that chain only leads him back to the possession of his grantors, and the period of that possession is short of the time fixed by the Statute of Limitations, he must be held responsible for all the acts of those through whom he claims. All his evidence of title rests upon the acts of his grantors; and if he claims the benefit of some of their acts, he must share the responsibility of those that may be against him, when another party is, at the time of his ¡Durábase, in the actual adverse possession of the premises. If those views be correct, the question was proper, and should have been allowed. It did not matter whether the defendant claimed under Richardson or not; Ralph Bird, as alleged, having, by Ms own act, destroyed all evidence of title, had no title to convey to the plaintiff; and as the premises were, at the date of the deed, in the adverse actual possession of others, the plaintiff had notice, and purchased at his peril. It is insisted by the defendant, that, to maintain ejectment [7] under prior possession, the plaintiff must show such possession in himself; that possession is mere evidence of title; but is not title itself, and therefore cannot be conveyed to another. But the answer to this objection is very simple : Possession is evidence of title; and the party in possession is therefore deemed, in law, to be the owner; and when he convoys the land to another, he is deemed, in law, not to convey his evidence of title, but the title itself, of which the law, by reason of such evidence, adjudges him the owner, as against all others not having a superior title. This point was decided by this Court in the case of McMinn v. Hays, already cited. The judgment of the Court below should be reversed, and the cause remanded for further proceedings.