Redd v. Murry

De Haven, J. Action to quiet title. The plaintiff recovered judgment in the superior court, and the defendants appeal. The plaintiff claims the land in controversy by virtue of a deed made to her by the defendant J. P. Murry, in June, 1871, in which the land conveyed to her is described as “situate, lying, and being in Porterville, county of Tulare, state of California, and bounded and particularly described as follows, to wit: on the north, two hundred and forty feet on Mill Street; on the east, one hundred and ten feet on a thirty-foot alley; on the south, two hundred and forty feet on an alley; on the west, one hundred and ten feet by a thirty-foot alley; and being all of lots Nos. one, two, three, and four, all of block No. eight, as per' plat of Johnson & Murry’s addition to the town of Porterville, Tulare County, California.” The defendant Martha Murry is the wife of plaintiff’s grantor, and bases her claim to the land in dispute upon a deed made to her by her husband subsequently to the execution of the above-mentioned deed to plaintiff. 1. Plaintiff’s deed is not upon its face void for uncertainty, as claimed by appellants, and parol evidence was properly admitted for the purpose of identifying the plat offered in evidence by her as the one referred to in such deed. It was incumbent upon plaintiff to produce, or in the event of its loss or destruction, give secondary [51] evidence of the contents of, the map referred to in her deed, as without such map there was no sufficient description of the land which the deed purported to convey (Caldwell v. Center, 30 Cal. 542; 89 Am. Dec. 131); and the court did not err in admitting in evidence the map'offered by plaintiff, and claimed by her to be the one mentioned in such deed. It is true, no witness testified to having seen this particular map at any time prior to 1873, which was two years after the execution of plaintiff’s deed, but still we think there was sufficient evidence before the court to justify it in finding that such plat was in existence at the date of that deed, and is the one to which reference is there made. The defendant J. P. Murry, in his deed to plaintiff, having described the land conveyed as block No. 8, as marked on the plat of Johnson & Murry’s addition to the town of Porterville, such deed is, of itself, as against him and his co-defendant, who claims under him by a subsequent conveyance, sufficient proof of the fact that there was such a plat in existence when he made his deed to plaintiff. (Patton v. Coldsborough, 9 Serg. & R. 53.) There was also evidence given which tended to show that such an addition to the town of Porterville was in fact surveyed prior to 1871, and that defendant J. P. Murry himself produced this map some years afterwards as .the plat of Johnson & Murry’s addition to that town. We think these facts were amply sufficient to identify the map in question as the one mentioned in the deed, and entitled it to be admitted in evidence. 2. It is claimed by appellant that the map is upon its face void for uncertainty, and that it furnishes no starting-point or data from which a surveyor or any other person could locate the particular lots or block described in the deed, and that the court should have so held, as a matter of law, and excluded it as evidence. We do not think the court committed any error in overruling this objection of appellant. It is true that no field-notes accompanied it, nor are there upon it any signs or letters to indicate the different points of the compass or [52] any express designation of it as the map of any particular place. But there is shown upon its face streets and alleys, and blocks subdivided into lots, a county road and a river. Many of the streets are named, and the blocks are numbered, and it may be that persons acquainted with the locality of which it is claimed to be a map would at once recognize it as such. It certainly cannot be said, as a matter of law, that they could not, or that it would be impossible for one familiar with the town of Porterville and Johnson & Murry’s addition thereto to locate upon the ground the block of land described in plaintiff’s deed, with reference to the streets marked on this plat; and this being so, the map is not void upon its face. Whether the block in question is capable of being thus identified is a pure question of fact, and upon this point the oral evidence of persons who are acquainted with the town of Porterville, and what is known as Johnson & Murry’s addition thereto, and with the different streets or other objects shown on the map, is admissible. If the land which plaintiff’s deed purported to convey can be thus identified with the aid of the map referred to, the map is sufficiently definite, and the deed is not void for insufficiency in its description of the same. 3. The court found that plaintiff is the owner of block 8 of Johnson & Murry’s addition to the town of Porterville, and that it is more particularly described as “commencing at a point on the south boundary line of Mill Street, in said town of Porterville, thirty feet east of the northeast corner of lot five, in block twenty, thence running easterly along said boundary line of Mill Street two hundred and forty feet; thence southerly at right angles one hundred and ten feet; thence westerly at right angles two hundred and forty feet; thence northerly one hundred and ten feet to the place of begining”; and thereupon entered a judgment quieting the title of plaintiff to the land thus described. The appellants contend that this finding is against the evidence, and it seems to us that in so far as it states that [53] plaintiff is the owner of the land therein particularly described by metes and bounds, this contention of appellants, must be upheld. The evidence before the court would support a finding and judgment to the effect that plaintiff is the owner of block 8, as marked on the plat of Johnson & Murry’s addition to the town of Porter-ville; but there is nothing in the record before us which tends in any degree to show that this block would fall within the specific metes and bounds mentioned in the findings and judgment of the court below. If the plaintiff desired that the judgment quieting her title to the land, in controversy should give a more definite description of Its boundaries than is contained in the deed under which she claims, she should have introduced evidence showing that the land, which is simply referred to in that deed as a block, could also be properly described by the specific metes and bounds given in the decree. It may be that this can be shown by witnesses who know its location; but in the absence of all evidence upon the point, the court was not justified in finding that the land which it describes in the decree by specific metes and bounds is the block 8 conveyed by plaintiff’s deed. 4. The plaintiff contends, however, that under the pleadings the fact is admitted that block 8, of Johnson & Murry’s addition to the town of Porterville, is also correctly described by the specific metes and bounds given in the judgment of the court, and that for this reason she was not required to prove the fact. We do not so construe the pleadings. The complaint, after alleging plaintiff’s ownership of block 8, as marked on the plat of Johnson & Murry’s addition to the town of Porterville, proceeds by way of recital to state that said block is particularly described according to certain specific metes and bounds, 'which are the same as those mentioned by the court below in its findings and judgment. The answer, without taking any special issue with the recital contained in the complaint as to the boundaries of the block claimed by plaintiff, simply [54] denies that plaintiff is the owner of the land described in the complaint, or any part thereof. This was all defendants were required to do in order to throw upon plaintiff the burden of proving that she was the owner of the land mentioned in the complaint. It was unnecessary to particularly traverse the recital in the complaint as to the boundaries of the land claimed by plaintiff. The material allegation of the complaint is that which asserts plaintiff’s ownership of the land described, and when this alleged fact was put in issue, as it was by the answer, the plaintiff was not entitled to a decree quieting her title to such land, no matter how it might be described, without proof that she had title to it, and the production of a deed which only described the land conveyed as a certain block, with reference to a plat, did not itself, in connection with the plat which was given in evidence upon the trial, show that such block might also be just as correctly described by the specific boundaries contained in the decree,* and that therefore the land within such specific boundaries was conveyed • by such deed. Judgment reversed, and cause remanded for a new trial. Harrison, J., Garoutte, J., Paterson, J., and Beatty, C. J., concurred. Sharpstein, J., dissented.