Allen v. McKay & Co.

Citations

• 6 Cal. Unrep. 993
• 70 P. 8
• 1902 Cal. LEXIS 903

Syllabus

<p>Adverse Possession—Claim of Title.—Code of Civil Procedure, Section 321, provides that in every action for the recovery of real property the person establishing legal title is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been in subordination to the legal title, unless there has been adverse possession for five years. Held, that where, in a suit to recover realty claimed by defendant by adverse possession by herself and predecessors, there was evidence sufficient to overcome the presumption in favor of plaintiff raised by the statute, but one witness testified that one of defendant’s predecessors, in answer to a direct question by plaintiff’s attorney, stated he did not claim title, and accepted a license to use the land, and it appeared that another predecessor also disclaimed, the jury were justified in finding that defendant’s predecessors held in subordination to plaintiff’s title.</p> <p>Adverse Possession—Landlord and Tenant.—Code of Civil Procedure, Section 326, provides that when the relation of landlord and tenant has existed the possession of the tenant is deemed the possession of the landlord until the expiration of five years from the time of the last payment of rent, though the tenant may have claimed to hold adversely. Held, that where one holding land jointly with others in subordination to the title of the owner secures a deed from the others of their interests, it will not be presumed that she then set up an adverse claim, or that the character of her possession was changed.</p> <p>Adverse Possession—Evidence.—Where Land was Claimed by Adverse possession, and the only evidence of actual adverse possession was testimony of defendant’s superintendent that “we claimed title to the land in defendant,” the evidence was insufficient.</p> <p>Appeal.—Where on Appeal a Question has Been Held to have Been One for the jury, and on a second trial the jury, on