Thompson v. Pioche

By the Court, Rhodes, J.: This is an action of ejectment to recover the possession of a tract of land situated in the City and County of San Francisco. The facts of the case, briefly stated, are as follows: The plaintiff entered upon the land in 1850, and between that time and the Winter of 1853-54, he inclosed and occupied the entire premises, and continued to occupy the same in person until November, 1855, when he leased the same to Osborne for the term of ten months. Osborne entered under the lease, but before the expiration of the term he agreed to hold the premises during the-pleasure of the plaintiff, and to deliver the possession to the plaintiff, within ten days after notice. The second agreement will be assumed, for the purposes of this case, to be a lease. The premises are a portion of a tract of land which had been granted by the Mexican Government to José Cornelio Bernal. The claim of Bernal was presented to the Board of Land Commissioners, and such proceedings were had in the matter, that the title was confirmed, and in pursuance thereof a patent was issued to the heirs of Bernal, on the 31st of December, 1857. During the months of September, October, and November, 1859, J. Mora Moss owned the premises under title derived from the patent, and the defendants derive their title from Moss. About the 1st of November, 1859, Moss notified Osborne that he (Moss) held — 514 — the title to the premises under the patent, and would proceed against him (Oshorne) to recover the possession of the premises, and thereupon Osborne took a lease of the premises from Moss, and remained in possession, and Moss forbore to turn him out of the possession, because of the lease. Moss had no knowledge that plaintiff had been in possession of the premises, or claimed the same, or that a lease had been made between-plaintiff and Osborne, except such as may be inferred from the possession of the plaintiff and Osborne, as above stated. Osborne, when applied to by the agent of Moss, in respect to the possession, stated that the plaintiff' had gone off" years ago, and that he, Osborne, claimed the land, and was in possession thereof. In 1860, the vendees of Moss executed a lease for a year to Osborne, and he thereafter remained in possession until some time in August, 1863, when he surrendered the same to the plaintiff. The plaintiff subsequently, and within five years before the commencement of this action, was ousted by certain of the defendants. The questions presented for decision are: First—Was Osborne, from the time of his entry up to the time when the plaintiff reentered in 1863, the plaintiff’s tenant ? Second—If Osborne was such tenant during that time, was the possession which the plaintiff held, by virtue of such tenancy, adverse in a legal sense, to those holding the title to the premises under the patent, from the date of the lease of Moss to Osborne, up to the reentry of the plaintiff ? The defendants contend that the threat of Moss, while he held the title, to sue Osborne for the recovery of the possession of the premises, and the taking of a lease from Moss by Osborne, amounted to an eviction of the latter. Upon this question the defendants cite only one case—Merriman v. Bourne, 9 Wal. 600). It is there said that “if the tenant be evicted, he may take a new lease from the party evicting him. It has been held that if threatened with suit upon a — 515 — paramount title, the threat under such circumstances, is equivalent to eviction. He may thereupon submit in good faith, and attorn to a party holding a valid title, to avoid litigation. In such case it is' incumbent on him and those who have profited by his admission, to show the existence and superiority of the title in question;” and several cases are cited by the Court in support of that doctrine. The finding of the Circuit Court does not state the precise dates at which the several attornments were made, but it would seem that they were prior to the passage of the Act of this State of April 27th, 1855, supplementary to and amendatory of the Act concerning conveyances (Stats. 1855, p. 171), as that Act is neither cited by counsel nor considered by the Court. The seventh section of the Act is as follows: “ The attornment of a tenant to a stranger shall be void, unless it be with the- consent of the landlord of such tenant, or in pursuance to, or in consequence of, a judgment or decree of some Court of competent jurisdiction.” Here the attornment was after the passage of the Act, and it comes within, and is made void by, the seventh section. Whatever may be the rule at common law, it is clear that the statute must prevail. The attornment of Osborne being declared void by the statute, and there being nothing in the case showing that the relation of landlord and tenant subsisting between the plaintiff and Osborne had been determined before the reentry of the plaintiff’ Osborne will be regarded in law, during the time of his occupation of the premises, as the plaintiff”s tenant. The statute declares such attornment void—that is to say, void as between the landlord and tenant, but it is not necessarily void between the tenant and the party to whom he attorned. For all the purposes of the relation of landlord and tenant, and in order to sustain the rights growing out of that relation, and to afford a remedy for their violation, Osborne will be deemed the tenant of the plaintiff. — 516 — The next question is not free from difficulty. No ease is brought to our notice, in which a party relied upon adverse possession, which was held under circumstances similar to those which are presented in this case. The Court found that Moss had no notice of the lease from the plaintiff to Osborne, other than may be inferred from the possession of the plaintiff and Osborne, as already stated. There is no evidence that he knew of the possession of the plaintiff) nor even that he, Moss, had any connection with the title, before the date of the patent. But it is said that the possession of Osborne was notice of the title of his landlord, the plaintiff. It was so held in the cases cited by the plaintiff, and in other cases in this Court. (Dutton v. Warschauer, 21 Cal. 628; Landers v. Bolton, 26 id. 419.) And the rule is the same, whether the premises are in the actual possession of the person claiming title or of his tenant; and the rule is usually stated in general terms, that the possession of such party is notice of his title. We had ° occasion, in Fair v. Stevenot, 29 Cal. 488, and Smith v. Yule, 31 Cal. 182, to analyze the rule, and ascertain with precision its true scope and purpose. It was there held, and we think correctly, that such possession was not of itself notice, but that it was sufficient to put a person dealing with the property upon inquiry,. and that it would be proof of notice, unless it be shown that the inquiry, after having been prosecuted with due diligence, did not disclose the title of the person in possession. When it is claimed that the person in actual possession is holding as a tenant, this rule will apply as well to the fact of the alleged tenancy, as to the title of the landlord. If the inquiry was duly pursued, and the fact of the tenancy was not disclosed, the party making the inquiry is not chargeable with notice of the tenancy. In this case Osborne, when applied to by Moss in respect to the possession, stated in substance that he was in possession in his own right, that he claimed the premises, and nothing — 517 — was said which even intimated that he held the possession under the plaintiff. When the agent of Moss stated that the plaintiff had formerly been in the possession of the premises, Osborne replied that the plaintiff had gone off years ago, and that he, Osborne, now claimed the land. That information might point to a sale or abandonment of the premises by the plaintiff, but not to an existing tenancy between him and Osborne. We are of the opinion that Moss duly pursued the inquiry which was incumbent on him, because of the possession of Osborne, and that as the inquiry did not disclose the tenancy of Osborne, Moss is not chargeable with notice of that fact. Osborne having accepted a lease from Moss under the circumstances already mentioned, and having continued in possession thereafter up to the time of the entry of the plaintiff, in 1863, the question arises whether the possession was of such a character, after the time when the lease was executed by Moss, as would keep the Statute of Limitations running against the parties holding title under the patent. To constitute adverse possession, the occupation must be open, visible, notorious, and exclusive, and must be retained under a claim of right to hold the land against him who was seized; and the person against whom it is held must have knowledge, or the means of knowledge, of such occupation and claim of right. Such knowledge, or the means by which such knowledge may be attained, must be brought home to the person who was seized or possessed of the land; because the statute proceeds on the ground that he, knowing that a cause of action exists in his favor for the intrusion, yet acquiesces in it, and does not attempt to regain the possession of his land in the mode provided by law. (Aug. Lim., Secs. 391, 398; 2 Wash, on Real Prop. 490.) A clandestine entry or possession will not set the statute in motion, because the owner of the land cannot be said to have acquiesced in the wrongful entry or possession. The owner will not be con — 518 — demned to lose his land because he has failed to sue for its recovery, when he had no notice that it was held or claimed adversely; but the statute cuts off his remedy only when he has neglected to commence his action beyond the period assigned for it. Moss, as already remarked, had no notice that any one, other than .Osborne, claimed any adverse right in the land; and he might have commenced an action against Osborne for the recovery of the possession; but it cannot be said that because he failed to do so, and instead thereof attempted to make Osborne—the only person who apparently claimed adversely to him—his tenant, and thus regain the constructive possession, he thereby acquiesced in the adverse possession of the undisclosed landlord of Osborne. It cannot be r said that Moss neglected to assert his title against the plaintiff, when he had no means of knowing that the plaintiff claimed anything in the laud. There is no rule of law that forbade him to accept as a tenant the only man who, so far as he knew, claimed adversely to him, and compelled him to eject, by suit or otherwise, the person in possession, under the vague suspicion that he might be the tenant of some - undisclosed landlord. To illustrate the soundness of the rule that there must be both knowledge of and acquiescence in the adverse possession, in order to subject the owner to the bar of the statute, it may be supposed that Moss, desiring to personally occupy the premises,=and wishing to avoid the expense and delay pf a suit, had “ bought off” Osborne, and the latter had then quit the possession, and Moss had thereupon entered. Moss would thereby have become the tenant of the plaintiff", and if the rule above stated be not correct, his actual possession would have become, by construction of law, adverse to his own title. "We are of the opinion that the evidence failed to bring home to Moss notice of the plaintiff’s claim to the land, and that the possession of the plaintiff, through his tenant, after — 519 — the attornment of the latter to Moss, was not adverse, in a legal sense, to the title of Moss and those claiming through him, so as to keep the Statute of Limitations running. Judgment and order reversed, as of April 2d, 1872, and cause remanded for a new trial.