Kidder v. Stevens

Thornton, J.: The findings in this case are as follows: "1. On the twenty-ninth day of June, 1868, Barton B. Bee was the owner in fee of the premises described in the complaint, and on said day sold and conveyed the same to the plaintiff, L. Kidder; that said premises were the separate property of said B. Kidder. “2. That on and prior to the sixteenth day of November, 1875, and from thence until the seventh day of May, 1879, said L. Kidder and Mary Kidder were husband and wife, and on the last-named date said Mary Kidder died testate. “3. That prior to and on said sixteenth day of November, 1875, and for a long time thereafter said Llewellyn Kidder was of unsound mind; that his mental unsoundness consisted of a fixed insane delusion in regard to religion, to wit; That he had incurred the displeasure of God and that he could only expiate his sins by refraining from partaking of food. He also, during such time, had occasional paroxysms of melancholia. “4. That on the sixteenth day of November, 1875, said Llewellyn Kidder signed, acknowledged, and delivered to said Mary Kidder a written deed of conveyance in proper form by way of gift to her of the said premises described in the complaint, and said Mary Kidder accepted said instrument. “ 5. That said Llewellyn Kidder at the time he made and delivered said deed understood the nature, force and ef [418] fect of said act, and that said act was not the result of his said insane delusion. “ 6. That said Mary Kidder was at the time of her death a resident of the county of Santa Clara, State of California. That in her last will she nominated and appointed Joseph C. Brown the executor thereof. That said will was proved in and admitted to probate by the Probate Court of said county of Santa Clara, on the nineteenth day of July, A. d. 1879, and letters testamentary were issued upon said will and the probate thereof by said Probate Court to said Brown, who duly qualified as such executor on the twenty-sixth day of July, 1879, and has been ever since the acting executor of said will. “ 7. On the first day of August, 1879, said Brown as said executor demised and let said premises to the defendant Ira Stevens, who then entered into the possession and occupation thereof as the tenant of the estate of said Mary Kidder, deceased, and has ever since occupied the same. “8. That the value of the use and occupation of said premises on the first day of August, 1879, was, and ever since has been, twelve dollars per month. “9. That said James Singleton was, on and prior to the first day of August, 1879, the properly appointed and acting guardian of the person and estate of said Llewellyn Kidder under and by virtue of proper orders of the Probate Court of the said county of Santa Clara, and letters of guardianship properly issued pursuant to said order to him, said Singleton, and he, said Singleton, has ever since continued to be said legally acting guardian. “10. That shortly after the first day of August, 1879, said Singleton, as said guardian, demanded the .possession of said premises for his ward from said defendant, and said Stevens then refused and ever since has refused to surrender the possession thereof.” An objection is taken to the findings of fact which involves a singular misconception of their meaning. It is found that L. Kidder, on the sixteenth day of November, 1875, conveyed the land in controversy to his wife, Mary Kidder, and that on the seventh day of May, 1879, Mary Kidder died testate, that her will was on the nineteenth of July, 1879, properly proved, [419] and one Brown named in the will as executor was duly appointed executor and acted as such, and on the first day of August, 1879, as such executor, demised the premises to one Ira Stevens, the defendant, who has ever since occupied the same. The other findings cover all the other issues in the action which were material. Mow it is said, that in the complaint ownership was alleged in the plaintiff and an ouster on a day named—which was denied, that the Court made no finding on that issue, but made a finding which it took to be a finding of ownership in the party under whom the defendant claims at a date several years prior to the date named in the allegation. The complaint avers a seisin in fee on the first day of June, 1879, and an ouster on the same day. It is found that the plaintiff was the owner in fee on the twenty-ninth of June, 1868, and conveyed to Mary Kidder, on the sixteenth day of November, 1875. And it is said this is not a finding on the issue of ownership on the first day of June, 1879, when the seisin was averred to have been had in the complaint. Why it is not such a finding it would be difficult to point out when the rules of law are applied to the facts as found. We must read all facts, whether in a pleading, or a special verdict, or an agreed statement, or finding of facts, in the light of the rules of law. Presumptions of law are rules of law, whether disputable or the contrary. If the disputable presumption is not contradicted or removed by evidence, it is a rule of law i to be applied as inflexibly as a presumption that is indisputable or conclusive; in other words, a presumption of law that is disputable; when not changed by evidence, becomes to the Court a rule indisputable for the case, and the Court is bound to apply it. A status once established is presumed by the law to remain, until the contrary appears (See People v. Feilen, 58 Cal. ' 218); or as a like rule is expressed, in the Code of Civil Procedure (See Section 1,963, subdivision 32), “that a thing once proved to exist continues as long as is usual with things of that nature.” It is found here that a conveyance of the premises was made in 1875 by plaintiff, the owner, to Mary Kidder. The law presumes that the estate created by that deed continued [420] until it was proven to have ceased, in the only way in which it can cease, by a conveyance or by a descent cast. It is further found that Mary Kidder died testate, in May, 1879; the executor was properly appointed in same year, leased to defendant in August, 1879, and that defendant had continued to occupy the premises ever since. Now, the estate of Mary Kidder having been found to have commenced in November, 1875, the law says that her estate continues until the proof shows that it had gone out of her; it then continued until her death, and by her will her executor under the law had the right to demise it to the defendant. The vice of the view taken by the learned counsel for appellant is this, that he takes that for an inference, or, as he calls it, “a presumption from evidence,” which is in fact a pure presumption of law. Though a disputable presumption, it is still a rule of law. (So held in Salmon v. Symonds, 24 Cal. 264.) But, in fact, the allegation of time as to seisin or ouster in our so called action of ejectment is not material, and a denial of it raises no material issue, except when the mesne profits are in question. (So held distinctly in Yount v. Howell, 14 Cal. 468.) If no material issue is raised by a denial of the time alleged, it is unnecessary to find upon it. It is stated in all the elementary books that time is immaterial as to seisin or ouster in the common law action of ejectment, and in all real actions. It is only required that the seisin or ouster should be alleged to exist before the commencement of the action, but the day or date is otherwise entirely immaterial. (See Gould’s Plead., §§ 63,101 of Ch. 3; 1 Chitty’s PI. 257 et seq., 9th Am. Ed.; Stephen on Plead. 292 et seq., 9th Am. Ed.; Taylor v. Wells, 2 Saunder’s Rep., 74 note c.; Com. Dig. Pleading, (c. 19); King v. Bishop of Chester, 2 Salk, 561; S. C., Skinner, 660.) But it is said that the plaintiff with such a finding is without remedy. The point in this regard is thus stated: “He could not attack the finding of ownership in B. on the tenth of January, 1850, (averred to have been the tenth of January, 1880), for that finding would speak the truth. There would be nothing left for him to attack, on his motion for a new trial, but a disputable presumption of evidence, which he had [421] already met and rebutted on the trial of the case, and he would find himself fighting the air with his hands, with no hope of relief from the position occupied by him without any fault of his own.” If what the learned counsel states be a “disputable presumption of evidence,” is such, there can be no difficulty in his remedy. If the evidence sustains the so-called presumption, there is nothing to attack. If .it does not, a motion for a new trial is the proper remedy. The counsel seems to think that inasmuch as he had met and rebutted this presumption on the trial, it would be idle to attack it again, in the mode pointed by law for such an attack. It is sufficient to say in answer to this that the Court did not agree with him that such presumption was met or rebutted on the trial, but found against him; and when the Court so finds, to review such finding on the ground that such presumption was met and rebutted on the trial, that is to say, that the evidence was insufficient to support the fact as found, there must be a motion for a new trial, or the party must bring it before this Court in accordance with Section 939, C. C. P. The findings in our judgment cover all the material issues. The opinion in the Department is satisfactory on the points to which it relates, and we conclude that the judgment and order should be affirmed, and it is so ordered. McKee and Sharpstein, JJ., concurred. Morrison, C. J., concurred in the judgment.