Alvarado v. Nordholt

De Haven, J. Action to recover possession of an undivided interest in a certain lot in the city of Los Angeles, which plaintiff claims to own in common with four of the defendants, the other. defend ants being tenants of these four. The plaintiff claims title to a portion of the interest sought to be recovered by him by inheritance from his grandfather, Francisco Javier Alvarado, and to the remaining portion by purchase from certain heirs of the same person. The answer denied plaintiff’s alleged ownership, and also contained a plea of the statute of limitations. The court found that plaintiff was not the owner of any interest in the property, and also that his cause of action is barred by section 318 of the Code of Civil Procedure, and thereupon judgment was entered in favor of defendants. The plaintiff insists that the findings of the court are not sustained by the evidence. The land in controversy is within the limits of the former pueblo of Los Angeles. No written evidence of title in plaintiff’s grandfather was produced, but it was shown that he occupied the premises as a house-lot from 1817 until the date of his death in 1831, and that his widow continued in the occupation thereof until her death in 1851. It was also proven that there is not to be found in the archives of the city of Los Angeles, the successor to the pueblo, any record of titles or grants made by the pueblo prior to 1828, and that there are no formal municipal records of the pueblo of a date prior [126] to 1832. If it should be assumed that these facts are sufficient upon which to base the presumption contended for by plaintiff, that the pueblo of Los Angeles did, in fact, grant to his grandfather the lana m controversy, and that the written evidence thereof had been lost or destroyed, still if the court was right in its findings that defendants have acquired title by adverse possession, the judgment must be affirmed, and this question we proceed to consider. As we understand this record, the grandfather of plaintiff left surviving him a widow, ten children, and grandchildren of a deceased daughter. The widow with some of her children continued to occupy the land in controversy from the death of her husband in 1831 until her own death in 1851. Proceedings for administration upon her estate were commenced in 1859, and the land was appraised as property belonging to it, and was sold by the administrator of said estate to one William Nordholt, and this sale being confirmed by the probate court, the said Nordholt received the administrator’s deed therefor on February 14, 1866, and thereafter continued in possession of the land so conveyed until his death in 1885, at which time the defendants succeeded to his title. It is claimed by appellant that as the widow of his grandfather was only the owner of an undivided interest in this land at the time of her death, her children and grandchildren having, succeeded to the remaining portion of her husband’s estate, the effect of the administrator’s deed was only to convey such interest as she had, and that said Nordholt thereupon became a tenant in common with the children of such widow, the remaining heirs of the elder Alvarado. Conceding this to be so, we think the evidence was sufficient to justify the court in finding that said Nordholt entered into possession, and there after, until his death, continued to hold the same, claiming the whole of said land as his own, and to show an ouster of his co-tenants within the rule announced by this court in the cases of Unger v. Mooney, 63 Cal. 586; [127] 49 Am. Rep. 100; Bath v. Valdez, 70 Cal. 350; and Winterburn v. Chambers, 91 Cal. 170. Whether Nordholt entered into possession, acknowledging himself as a co-tenant of those under whom plaintiff claims, or whether he entered claiming the whole title, and whether his possession thereafter was adverse, and of such notoriety that his alleged co-tenants must, in the nature of things, be presumed to have known of his claim of exclusive ownership, were questions of fact to be determined by the lower court upon a view of all the circumstances in evidence. It was admitted upon the trial that from the date of the administrator’s deed referred to down to the commencement of this action, the said Nordholt, and defendants who have succeeded to his title, received all the rents of the property, and paid all taxes which have been assessed against it. There was also evidence tending to show that all street-improvement assessments charged against said property had been paid by defendants or their predecessors. The land is within two hundred yards of the business center of the city, and the record does not show that the plaintiff, or any of those to whose alleged rights he has succeeded, ever made any claim for this property until some time in 1884. Upon these facts, and other evidence tending to show that Nordholt always claimev. to be the owner of the property, that this claim was open and notorious, and generally known to the community, the court was warranted in finding that his alleged co-tenants had notice of his claim of exclusive ownership, and that his possession was adverse to them. The plaintiff himself attained his majority within five years before the commencement of this action, but as his mother, under whom he claims, lived for something more than a year after Nordholt took possession under his deed, and could have maintained an action to recover her interest in the land during her lifetime, the running of the statute of limitations was not suspended during [128] the minority of plaintiff. (McLeran v. Benton, 73 Cal. 344. The court did not err in its ruling on plaintiff’s offer to prove that there was no publication of notice of the survey and plat upon which was based the patent to the city of Los Angeles of August 9, 1866, prior to the issuance of that patent, and in excluding proof of the other matters contained in plaintiff’s offer. In the case of Cruz v. Martinez, 53 Cal. 239, this court substantially passed upon the same question,, and held such proof inadmissible, saying: “ The patent to the city of Los Angeles, bearing date the ninth day of August, 1866, having been duly signed and recorded in the proper book in the general land-office, vested in the city the legal title to the lands therein described.” We see no material difference between the facts contained in plaintiff’s offer and those before the court in that case. The fact offered to be shown by plaintiff, to the effect that after the issuance of the patent of August 9, 1866, the United States surveyer-general published notice of the prior survey upon which such patent was in fact based, and that the city of Los Angeles then filed objections to such survey, which were overruled, is not sufficient to show that such patent was rejected by the city, or that it did not convey the legal title, or that it was recalled and canceled, with the consent of the city. • In fact, we do not understand that it is claimed, or that plaintiff offered to show, that such patent was in fa^ct recalled or canceled. In addition to this, plaintiff’s offer contained an admission that at the time the city filed its objections to such survey, “its common council, mayor, and authorities” did not know of the issuance of the prior patent, and never heard of the same, “ until after the execution of said patent of August 4, 1875; but said corporation, in January, 1876, demanded from said commissioner the delivery of said patent of 1866.” The rule in regard to a United States patent is, that when it is signed, sealed, and recorded in the records of the land-office, then, so far as the government is con [129] cerned, the title to the land therein described has been transferred to the grantee, and “ its acceptance by the grantee will then be conclusively presumed, unless, immediately upon knowledge of its issue, his refusal to accept it is explicitly declared, and such refusal is communicated to the land-office.” (Leroy v. Jamison, 3 Saw. 391; Case of Mutell, 3 Op. Att’y-Gen. 654.) It is very apparent that under this rule the matters offered to be proven by plaintiff were not sufficient to show that the patent of August 9, 1866, did not vest in the city of Los Angeles the title to the land therein described, at its date, or that such title was not acquired by the city until the issuance to it by the United States of the subsequent patent for the same land on August 4, 1875. There are no other assignments of error which require special discussion. Judgment and order affirmed. Sharpstein, J., McFarland, J., Harrison, J., Paterson, J., and Garoutte, J., concurred. Rehearing denied.