Aguirre v. Alexander

McKee, J.: This case arises out of an action of ejectment, brought by the appellants to recover possession of a tract of land in Los Angeles County, known as part of the Rancho San Pedro, which had been granted by the Mexican Government, and for which a patent was issued in December, 1855, by the United States Government, to the grantees therein named. Plaintiffs in the action are children and heirs at law of José Antonio Aguirre, deceased. As such they claim title to an undivided interest of the land in dispute. Defendants claim to have derived title to the land from the surviving widow of the deceased Antonio, by mesne conveyances from the purchaser at a mortgage foreclosure sale and sheriff’s deed under which they severally entered into possession, believing and claiming that they had acquired an absolute title in fee; and it is contended that, under this claim of title, they have been in possession for more than five years before the commencement of the plaintiffs’ action, and that the plaintiffs’ cause of action, if any they ever had, is barred by the Statute of Limitations. (Code Civ. Proc., §§ 318, 319.) The land in dispute is a tract which embraces portions of two parcels of the rancho San Pedro, one of which had been allotted to the said José Antonio Aguirre, and the other to one Concepcion Rodriguez, in a judicial partition of the ranch which took place in 1855, between them and the other tenants in common of the ranch. But, subsequently to the allotments and the final decree of partition confirming the same, Aguirre acquired by purchase the parcel which had been allotted and confirmed to Rodriguez. Having thus become the owner of both parcels, Aguirre, on the 9th of June, 1856, conveyed by metes and bounds, the parcel which had been allotted and confirmed to him, to one Augustin Olvera by a deed of bargain and sale; and Olvera on June 30th, 1856, by a like deed, conveyed the land, by the same specific description, to the wife of Aguirre and the mother of the plaintiffs. In 1858, Aguirre and his wife conveyed portions of both parcels to one Gastello de Dominguez, and afterwards, in July, 1860, while the title to the remaining portions of the two parcels of the ranch stood partly in the name of his wife and partly in his — 24 — own name, José Antonio died, leaving his wife surviving him and the plaintiffs as his heirs-at-law. Administration of his estate followed the death of Aguirre. But pending administration the widow intermarried with one Ferrar, and she and her husband, in 1863, mortgaged to one Temple, of Los Angeles, the land described in the complaint in the action. The mortgage premises, however, did not include that parcel of the ranch described by metes and bounds in the conveyance by José Antonio to Olvera, and in the conveyance by Olvera to Mrs. Aguirre; and the title acquired by the defendants from her, by and through the foreclosure sale and sheriff’s deed of the mortgage premises, did not attach to that parcel of the land the title to which then stood in the name of Mrs. Ferrar. As surviving widow of the deceased José Antonio, she had a mortgageable interest in both parcels of the ranch; but that interest was only an undivided interest,- because being the common property of the husband and wife, the widow mortgaged only her interest, and the defendants who claim from her, acquired no greater interest by their conveyances; they became tenants in common with the plaintiffs of the land in dispute. But it was contended by the defendants that there had been a mistake in the execution of the deeds by Aguirre to Olvera, and by Olvera to Mrs. Aguirre. In their answer they alleged that “ while the father of the plaintiffs was the owner of the tract of land described in the complaint, and of another tract adjoining it on the south, he formed the intention of conveying the said tract of land to his wife Rosario Estadillo de Aguirre, and consulted a lawyer as to carrying said intention into effect. Being advised by his said attorney that a direct conveyance to his said wife would be invalid, and that it was necessary, in order to effectuate his said intention, that the title should pass through a third party, on the 30th day of June, 1856, with said intention, and no other, he executed a deed to Olvera. “ The real and mutual intention and understanding of the parties to said deed was to convey both of said tracts to the said Olvera; but by a mutual mistake of said parties the description by metes and bounds inserted in said deed did not — 25 — include the land described in the complaint, but only the tract adjoining it on the south; but it was the mutual intent that said description should include the former tract, and the said parties, at the time of its execution, and ever afterwards, believed that it did. In pursuance of said original intention, the said Olvera afterwards executed a deed of conveyance of the land conveyed to him by the said Aguirre to the said Rosario Estudillo de Aguirre. The real and mutual intention of the parties to this deed, also, was the conveyance of both of said tracts, but by a mutual mistake there was inserted the same erroneous description, by metes and bounds, that was contained in the deed to Olvera; but it was the mutual intent that the said description should include both tracts, and the said parties at the time of its execution and until lately believed that it did.” Mow, in support of the issues made by the pleadings, the defendants, at the trial of the case in the Court below, on the cross-examination of a witness for the plaintiffs, elicited the following declarations of Aguirre respecting the conveyances made by him to his wife through the medium of Olvera: “ José Antonio Aguirre told me he wanted to leave to his wife and family the land that belonged to him in the Rancho San Pedro. He had two sections—one that I sold him, and the one that he bought from my brother Pedro—and he told me that he wanted to make an arrangement with his wife to make her a deed so that she would be secured in case of his death. Then, one day he came to Los Angeles, and when he returned, he told me that he had inquired of a lawyer, who told him he could not make any trade direct with his wife, that he should sell to a third party, and the third party to his wife, and that he was going to do it with Don Augustin Olvera, and he subsequently told me he had made the conveyance to his wife, through Olvera.” These declarations were admitted in evidence against the objections of the plaintiffs, and that is assigned as error. Aside from the objection that the declarations were not in explanation of any matter to which the witness had testified in his examination in chief, we think that the declarations themselves were inadmissible. It is undoubtedly true as a legal proposition, that verbal as well as written declarations — 26 — of a party to a transaction are admissible when they accompany some act, the nature, object, or motive of which is the subject of inquiry. (§ 1850, Code Civ. Proc.) But they must be contemporaneous with the act to which they were intended to give character. The declarations in evidence did not conform to that rule. They did not grow directly out of the act of José Antonio in the execution and delivery of his deed to Olvera, for the purpose of conveying the land to his wife; nor does it appear that any of them were made during the continuance of the act, or at or immediately after its performance. The first of them appear to have been made at some uncertain time before the making of the deed; the second on a “ day when the actor came to Los Angeles,” and the third at some time “ subsequently” to the act. Thé first is not connected with the act, because the form of the act was then unknown to the actor; the second and third were mere isolated conversations, one of which related to the manner of doing the act which he contemplated performing, and the other to the act after it had been performed. The exact time when any of them were made does not appear ; there is nothing in the testimony from which it can be inferred that any of them were contemporaneous with the fact under consideration. They can, therefore, be considered only as mere hearsay. An act cannot be varied, qualified, or explained by declarations which amount to no more than a mere narrative of a past transaction, nor by an isolated conversation, nor by an isolated act done at a later period. (Nutting v. Page, 4 Gray, 584.) It was, therefore, error to overrule the objections to such testimony. We think the Court also erred in its instructions to the jury. At the request of the plaintiffs’ counsel it gave to the jury the following instructions upon the subject of ouster, viz.: “As between tenants in common the Statute of Limitations does not commence to run until there has been an actual ouster. Nothing short of an actual ouster will sever the unity of possession.” And at the request of defendants’ counsel, the following: “ Proof of an actual ouster, that is, a turning out by the shoulders by one tenant in common of another, is not indispensable to commence an adverse possession.” The Court also, at the request of plaintiffs’ counsel, gave the — 27 — jury the following instruction on the question of descriptions of the land in deed from Aguirre and wife to Olvera: “ Where there is a general description and a specific description by metes and bounds, the latter must prevail;” and at the request of defendants’ counsel, the following on the same subject, viz.: “ Where land in a deed is well described by name, or other general description, and there is added, by way of reiteration or affirmation, a particular description by metes and bounds, which is inconsistent with the general description, the particular description must be rejected.” These instructions are manifestly contradictory. As was said in Brown v. McAllister, 39 Cal. 573, “ they are wholly repugnant and can not stand together, and for this reason, if there were no other error in the record, the judgment must be reversed.” Where the instructions on a material point are contradictory, it is impossible for the jury to decide which should prevail; and it is equally impossible, after the verdict, to know that the jury was not influenced by that instruction which was erroneous, as one or the other must necessarily be where the two are repugnant. It is urged that these hostile and opposing instructions did not prejudice the plaintiffs, because, as far as the question of ouster was concerned, the facts which established the ouster, were stipulated by the attorneys of the plaintiffs, were proved at the trial of the case, and were specially found by the jury. It teas proved at the trial that the defendants had acquired whatever title and interest they had in the land by mesne conveyances from the widow of the ancestor of the plaintiffs; and that they and their grantors had been in possession under their conveyances, claiming title in themselves for a period of twelve years. It was also stipulated by the plaintiffs’ attorneys, that each of the defendants had acquired his right and title to the land of which he was in possession, in good faith, and for a valuable consideration, and had entered into possession of it at the date of his deed; and that since the date of his entry and deed he had been openly, notoriously, and exclusively in the possession of it, cultivating and improving it, within a substantial inclosure, and claiming title to it adversely to the plaintiffs. It was also specially found by the jury that the plaintiffs were children of José Antonio Aguirre, deceased, and Eosaxio — 28 — Estadillo de Aguirre, and heirs-at-law of José Antonio Aguirre, deceased, who died in 1860, and were, at the commencement of the action, aged respectively twenty-nine, twenty-six, twenty-two, and twenty years of age; that the defendants, or their grantors, had entered into possession of the lands in dispute at dates ranging between the years 1868, 1869, and 1878; that the land claimed by each defendant had been actually occupied by his grantor in the year 1866; that each one of thirty-two of the defendants had inclosed the particular lot of land which he claimed, and that about twenty-four of the defendants had not made any inclosure; that all the defendants and their grantors had occupied and possessed the land for about twelve years, and that each of them entered under a deed conveying the title of Rosario Estadillo de Aguirre—the widow of José Antonio de Aguirre, deceased, and the mother of the plaintiffs—and “ held their possession thereunder;” and that none of the defendants, or any of their grantors, had, at any time, notified the plaintiffs that he ever held, or claimed to hold, any part of the lands adversely to plaintiffs. Now, during the twelve years in which the defendants or their grantors were in possession of the lands, the plaintiffs were out of possession, but they claimed title to the lands in themselves as heirs-at-law of José Antonio Aguirre, deceased, and as tenants in common with their mother (Rosario) and her grantees, the defendants, in possession. Both plaintiffs and defendants, therefore, claimed from the same source of title. The occupation of the property by the defendants, under their conveyances, was under and in subordination to the legal title claimed by the plaintiffs as tenants in common with the defendants; and the occupancy of each, or of his grantor, under his claim of title, founded upon his conveyance, was not exclusive of the right of the plaintiffs who were tenants in common with him. Such occupation was entirely consistent with the plaintiffs’ title, and continued to be so until those in possession denied the plaintiffs’ title, or committed an actual ouster of the plaintiffs. A mere adverse holding and claim of title by those who are tenants in common with others of a tract of land do not of themselves constitute an ouster of a co-tenant. Entry into possession and acts — 29 — of possession are referable to the community of title. A tenant in common has a right to assume that the possession of his co-tenant is his possession, until informed to the contrary, either by express notice, or by acts and declarations which may be equivalent to notice. (Miller v. Myers, 46 Cal. 535.) But the jury found that none of the defendants nor any of their grantors had ever notified the plaintiff's that he held or claimed to hold possession adversely to the plaintiffs, and the only question which remained for the consideration of the jury was, whether the evidence as to the character of the possession of each defendant, and the acts and declarations while in possession, were of a character to impart notice to the plaintiffs that the possession was adverse; and if so, at what time that knowledge was attributable to the plaintiffs, so that they might determine when an actual ouster of the plaintiffs took place. Upon this question the instructions of the Court tended to mislead the jury. We can not undertake to determine how far the jury may have been influenced by them in finding when a disseisin took place, which set the Statute of Limitations in motion against the plaintiffs. Besides, upon this question of ouster which was involved in the issue of the Statute of Limitations, upon which the defendants relied as a bar to the action, both the jury and the Court disregarded the special verdict; for the jury specially found that some of the defendants did not actually oust the plaintiffs until 1873; that others did not until 1874, and others not until 1876. The action was commenced in 1878, so that the Statute of Limitations did not run, from the date of the ouster, as found by the jury, in favor of those of the defendants, at least, who ousted the plaintiffs in 1874 and 1876; and the plaintiffs were entitled to a verdict against them. Yet the jury returned a general verdict for them. As a conclusion of law from the special verdict this general verdict was unwarranted. It was inconsistent with the special verdict, and the Court should have disregarded it, and given judgment for the plaintiffs upon the special verdict against those of the defendants in whose favor the Statute of Limitations had not run. This it did not do, and the judgment which it rendered in favor of those defendants was erroneous. — 30 — Moreover, there was no conflict of evidence upon the question of the respective ages of the plaintiffs at the commencement of the action—one of them was a minor, under the age of twenty-one years, and another, one year older than the age of majority—and the jury so specially found. As the law of these facts the Court gave the jury the following instruction, namely: “The Statute of Limitations does not run against a male until he has reached twenty-one years of age, nor against a female until she has attained eighteen years of age. This statute, therefore, has not commenced to run against said Martin Aguirre, he being a minor, and can not have been in operation against the other plaintiffs for a longer period than the time which has elapsed since they attained their majority; but in no event can the Statute of Limitations have been in operation against the plaintiffs unless they have been actually ousted in the manner already described, and then only from such ouster.” It is evident that the jury entirely disregarded this instruction, for they returned a general verdict against the plaintiffs. But it is said that the verdict is right and the instruction was wrong, because the Statute of Limitations runs against a minor as well as against an adult. Whether the rights of minors are barred equally with those of adults is a question which need not, under the circumstances, be determined. The fact with which we have to deal is, that the jury by their verdict disregarded the instruction of the Court; and, for that reason alone, it was the duty of the Court to set aside the verdict, whether the instruction was right or wrong. (Emerson v. Santa Clara County, 40 Cal. 543.) Ad questionem facti non respondent judices; ad questionem legis non respondent juratores. At the request of defendants’ counsel, the Court also gave to the jury some nine or ten instructions upon the question of the construction of written instruments. These, as abstract legal propositions, were, in the main, correct; but they were not pertinent to any issues of fact to be found by the jury, and for that reason they should not have been given. There is no rule of law better established than that the construction of written instruments is a matter of law for the Court, and not of fact for the jury, unless when the meaning — 31 — and construction are doubtful and depend upon extrinsic evidence. But there was no evidence in the case which required the jury to pass upon the question, for the Court had construed the only deed in evidence in the case about which there was any controversy, by telling them that “ the deed conveyed only the premises therein specifically described; and that those who claimed under the deed had acquired no greater rights thereby than such as had been acquired by the grantee in that deed.” In thus instructing them the Court gave the proper construction to the description of the property conveyed by the deed, and the jury were bound to accept it as the law of the question. There was, therefore, no question before them about which the instructions given them in relation to the construction of written instruments were in any respects applicable. Order reversed and cause remanded for a new trial. Morrison, C. J., and Thornton, J., concurred in the order of reversal.