Crosby v. Dowd

Ross, J.: The action is ejectment, and the premises a part of a Mexican grant, for which a patent was issued by the United States Government on the nineteenth day of February, 1868. The plaintiff is the daughter and one of the heirs of S. J. Crosby, deceased. Crosby owned the land at the time of his death, which occurred March 29,1859. When he died his daughter was but a little more than a month old. Crosby’s possession of the property was not invaded during his life-time. Had it been, and had the Statute of Limitations been set in motion during that period, its running would not, of course, have been arrested by the subsequent disability of the plaintiff. But this was not the case. When Crosby died, his title to an undivided interest in the property descended to and vested in the plaintiff. She then became, with her co-tenant, entitled to its possession. But she was then a minor, incapable of vindicating or asserting her right. Around her, therefore, the law threw its protection. If there had then been an invasion of her possession, there can be no doubt that she would have been entitled to the statutory period of five years after attaining her majority within which to have asserted her right by action. (C. C. P., § 328.) With the descent of the title came the protection of the law. What removed that protection ? It is said that subsequent administration upon the estate of the ancestor did so. Administration upon that estate was had, although the precise date when it was commenced does not appear. Letters of administration were, however, issued to one Beed prior to the year 1860. Beed tendered his resignation of the office June 28,1860, and it was accepted on the eleventh of August of the same year. Beach succeeded Beed as administrator by appointment made May 8,1866, and ho resigned April 2, 1870. From April 2, 1870, to January 3, 1876, there was no administrator; but upon the last-named .day one Smith was- appointed. During all this time the — 598 — plaintiff continued a minor. What is relied on by the- appellant as adverse possession of the premises commenced in the year 1866v The patent, as already said, issued February 19, 1868. At both of the last-mentioned dates there was an administrator of the estate of S. J. Crosby, deceased, in office, and the appellant’s claim is, that as, under our law, the administrator alone was then entitled to the possession of the property, it was his right alone, as well as his duty, to have commenced an action for the recovery of the possession from the adverse possessor; that the Statute of Limitations commenced to run upon the issuance of the patent, and five years thereafter all rights on the part of the administrator, as well as of the infant heir of Crosby, became barred. If such is the necessary result of the provisions of law, it is a hard result, as must be apparent to every one. There is no provision of 'law requiring the administrator to give security based upon the value of the real property of the deceased. Under the law in existence when the alleged ouster in this case occurred, and when it is claimed the Statute of Limitations began to run, the sole right to the possession of the property was in the administrator; and prior to January 1, 1873, the heir could not maintain an action for the recovery of the possession of the property, even though there was a vacancy in the administration. (Chapman v. Hollister, 42 Cal. 462.) So that the result of appellant’s position would be to divest the title of an infant heir by means of an adverse possession, commenced and held at a time when the heir was not only incapable of asserting her rights by reason of infancy, but was absolutely prohibited by law from asserting them, and when, too, there was no one in existence charged with the right or duty of protecting them. The circumstances of the present case well illustrate the wrong that would result from such a construction of the law. At the time it is claimed the Statute of Limitations began to run—February 19, 1868—the plaintiff was less than ten years old. It is true there was then an administrator of the estate of her ancestor, in the person of Beach, and that he could have commenped and maintained an action against the intruder for the possession of the property. But on the second of April, 1870, a vacancy in the administration occurred, — 599 — and that vacancy continued until after the lapse of five years from the nineteenth 'of February, 1868. During this time there was no one in existence capable of bringing the action. There was no administrator, and the plaintiff was not only disqualified by reason of her minority, but she was prohibited by law from doing so. She was likewise legally incompetent to cause the appointment of an administrator to represent the estate, as well as to compel action, if there had been one. It would be a law with very little justice in it that would permit an infant’s property to be divested by adverse possession held under such circumstances. Fortunately, we aré convinced, after careful consideration, that the terms of our statute do not compel us to so hold. Engrafted upon the provisions prescribing the time of commencement of actions for the recovery of real property, is an exception in these words: “If a person entitled to commence an action for the recovery of real property, or for the recovery of the possession thereof, or to make any entry or defense founded on the title of real property, or to rents or services out of the same, be, at the time such title first descends or accrues, either: “1. Within the age of majority; or, 2/ * * * The time during which such disability continues is not deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such entry or defense, but such action may be commenced, or entry or defense made, within the period of five years after such disability shall cease, or after the death of the person entitled who shall die under such disability; but such action shall not be commenced, or entry or defense made, after that period.” (O. 0. P., § 328.) If it be true, as it undoubtedly is, that had the plaintiff’s possession of the premises been invaded the day the title thereto first descended to her—when she was' less than two months old—the time elapsing between the ouster and the attainment of her majority could not have been deemed any portion of the time limited for the commencement of an action by her for the recovery of the possession, but that she would have been allowed the period of five years after the removal of her disability within which to have commenced — 600 — such action, no reason is perceived why the same is not also true where the adverse entry takes place on any other day during the existence of the disability. Precisely the same reasons for the protection intended by the. law exist in the one case as in the other, and we are persuaded that where the protection once attaches it continues until the disability is removed. Our conclusion on this branch of the case is strengthened by the consideration of other provisions of our statutes. As observed already, prior to January 1, 1873, the heir was prohibited by statute from maintaining an action for the recovery of the possession of the property (the title to which was in her), pending administration upon the estate of the ancestor, and this, though there was a vacancy in the administration. ■ Yet the statute, in prescribing the requirements of the administrator’s bond, made no provision for security on his part for the protection of the interest of the heir in the real property of the estate. It is not to be supposed that had the Legislature intended the Statute of Limitations to run against the title of the heir, whom it prohibited from suing for the possession, because it conferred on the administrator that right temporarily, would not have required of the administrator adequate security for the protection of the rights of the heir. A further statutory provision in support of the same view is found id Section 356 of the Code of Civil Procedure, which reads: “When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is no part of the time limited for the commencement of the action.” The statutory prohibition against the maintenance by the heir of an action for the recovery of the real property of the estate was removed January 1, 1873, by the taking effect of the Codes, Section 1452 of the Code of Civil Procedure, providing that “the heirs or devisees may themselves, or jointly with the executor or administrator, maintain an action for the possession of the real estate, or for the purpose of quieting title to the same, against any one except the executor or administratorand on April 16,-1880, this section was — 601 — amended by adding the words: “But this section shall not be so construed as requiring them so to do.” Even if it could be held that the Statute of Limitations commenced running against thé plaintiff on the first day of January, 1873, when the statute for the first time conferred upon her the right to maintain an action for the recovery of the property, it had not fully run on the twenty-first day of April, 1877, when the present action was commenced. But, for the reasons already stated, we are satisfied that the plaintiff’s rights were saved by the provisions of Section 328 of the Code of Civil Procedure, and that she was lawfully entitled to the period of five years after attaining her majority within which to assert them. Another defense relied on to defeat the action is title claimed to have been acquired by the defendant through certain foreclosure proceedings. The land directed to be sold is thus described in the decree of foreclosure, as also in the complaint in the action and in the mortgage itself: “ All of that part of the rancho situated in the county of Santa Clara, in the State of California, called the Santa Bita, described in the three following deeds, to wit: In a deed dated February 15,1865, from Secundino Bobles and Antonia Garcia, his wife, Miguel Espinosa, Jesus Bobles, his wife, to Samuel J. Crosby, filed for record in the County Becorder’s office of Santa Clara county, on the sixteenth day of February, 1855, and recorded in Book H’ of Deeds, page 405, and re-recorded March 10, "1855, and in Book ‘ G ’ of Deeds, page 477; also, a deed dated May 5, 1855, from one Teodoro de Jesus Bobles to Samuel J. Crosby, filed for record in said Becorder’s office May 7, 1855, and recorded in Book ‘ G ’ of Deeds, page 509; and also, a deed dated this tenth day of March, 1856, from Don Teodoro de Jesus Bobles to Samuel J. Crosby, filed for record in said Becorder’s office on the eleventh day of March, 1856, and recorded in Book ‘ K ’ of Deeds, page 188, to which deeds reference is made for a more particular description of the premises.” It will he thus seen that the only description of the property directed to be sold is such as may be found in three certain deeds, to which reference is made. Neither in the decree, in the complaint, nor in the mortgage itself, is there — 602 — any pretense of a description of the property, but only a reference to certain deeds for a description. Assuming that the deeds could be found, or, in the event that they- could not be found, that reference could be made to the record of them, the descriptive calls there found might prove, on examination, to be wholly indefinite, or so vague as to leave it doubtful what lands they included. The primary purpose of an action of foreclosure is to enforce a lien upon certain specific premises. The first step in that proceeding, under our system, is the filing of a complaint. That complaint must contain a description prima facie at least sufficient for the identification of the property. There must be such a basis for the decree that is to follow to rest on. While it is generally sufficient to describe the premises as they appear in the mortgage itself, this is only so when the mortgage itself contains a description—not where, as here, the mortgage contains no description, but only a reference therefor to other instruments, from which a description may or may not be obtained. (2 Jones on Mortgages, Section 1,462, and authorities there cited.) If the description contained in the mortgage involved in Overfeldt v. Crosby was susceptible of being made definite and certain, that ought to have been done in the action foreclosing the mortgage. The decree should have put an end to all such uncertainties, and should have described the land directed to be sold with sufficient certainty for its identification. The degree of certainty sufficient in a deed of conveyance, would, as said by Chief Justice Shaw, in Miller v. Miller, 16 Pick. 215, often be insufficient in a legal process, because in the former an indefinite description may be made good by evidence aliunde. In Clark v. Gage, 19 Mich. 507, which was a proceeding instituted to recover the possession of land in a summary manner, pursuant to the statutes of the State, the Court referred to the cases of Miller v. Miller, supra; Atwood v. Atwood, 22 Pick. 283; and Flagg v. Bean, 5 Foster, (N. H.), 49, and said: “ Without adopting the extreme view that the description required in a complaint should be so explicit as to enable the Sheriff to deliver possession without reference to any extrinsic facts, it is believed that the principle prevading these cases — 603 — is a clear and correct authority for holding that the certainty requisite in a complaint in this class of cases is not attained by a bare reference to a deed or other instrument; and further, that such reference when made will not have the effect to help an otherwise insufficient description. It is not possible to define with perfect exactness the kind of description which will suffice in all cases, but it may be stated as a general rule that it should be so precise as prima facie to give to the defendant who is to answer to the complaint, the tribunal appointed by law to decide upon it, and the officer who may be required to put a complainant in possession, a distinct idea of the very premises. The degree of precision which is here indicated may be attained, and yet from the nature of the subject-matter and its surrounding objects, the officer on executing a writ of restitution or possession may find it necessary to instruct himself in local circumstances in order to act correctly. But any necessity of that kind would result from unavoidable difficulties belonging to the subject-matter, and not from any defect in the proceedings on paper.” There is as much necessity for a description of the property sounht to be charged with a lien as there is in a case the object of which is to recover possession of the property; and as much necessity for a description in the decree as in the complaint. (See, also, Freeman on Judgments, Section 54; Lawless v. Barger, 9 Bush (Ky.), 665; Runyon v. Darnall, 10 id. 67; Struble v. Neighbert, 41 Ind. 344.) Our conclusion is that the defendants acquired no title under the foreclosure proceedings of Overfeldt v. Crosby. Whether plaintiff could recover the entire premises if defendant Clark had by adverse possession extinguished the title of the plaintiff’s co-tenant, and himself thereby acquired title to the interest theretofore owned by the co-tenant, is a question that need not be considered in this case, since it does not appear, either in the findings or proof, that Clark has ever held adverse possession of the premises as against the plaintiff’s co-tenant. The bill of exceptions recites: “ The only evidence in addition to the documentary evidence upon which the findings are based, as to the adverse — 604 — possession of the defendant Clarke, or as to any title or claim of title under which he held and occupied, was the following testimony of the defendant Jeremiah Clarke: The defendant, Patrick Dowd, entered in possession of that portion of the premises in dispute, which was -in his possession at' the commencement of this action, under a lease from me about the first day of October, 1866, and he has remained in possession ever since. He has never surrendered the possession since his first entry under the lease from me. The description in the deeds referred to for description in the decree in Overfeldt v. Crosby, embraces the same premises described in the Sheriff’s deed to Overfeldt, and all the premises sued for in this case, except the ‘ Mayfield Farm.’ Previous to my purchase from Overfeldt, I had adverse possession of a portion of the land not in the possession of S. J. Crosby. My recollection does not serve me whether, in my transaction with the administration of Mr. Crosby’s estate, I recognized the eighty acres which I had the possession of before, and which was not in possession of Crosby in his life-time, as part of the land for which I paid him rent or not. But all my relations with the administrator were perfectly friendly, and I never claimed adversely to anything he claimed. I paid him such rent as he proposed. “ The eighty acres spoken of was a piece that Mr. McGarrahan had in possession and kept Crosby out of. I received possession of this eighty acres from defendant Dowd in the fall of 1858. I do not recollect whether I took any written lease from Beed, the administrator of the Crosby estate, or not. Nor do I recollect that anything was said about this eighty acres. It is very likely it was included in the lease from Beed, and that I paid him rent for it. I do not know that he or I thought about the eighty acres that McGarrahan and Dowd had held adversely to Crosby, the possession of which I received from Dowd. We simply agreed how much I was to. pay, having reference to the time when possession should be taken under the Overfeldt purchase.” Judgment and orders affirmed. McKinstry, J., Morrison, C. J., and Thornton, Myrick, and Sharpstein, JJ., concurred.