Bryan v. Tormey

Citations

• 3 Cal. Unrep. 85
• 21 P. 725
• 1889 Cal. LEXIS 1121

Syllabus

<p>Quieting Title.—A Complaint to Quiet Title Alleged That Plaintiff was the owner and in possession of the property. The findings were that plaintiff was the owner, but that defendant was in possession, and judgment was rendered that plaintiff’s title be quieted, and that defendant be removed from possession. Under Code of Civil Procedure of California, section 380, the action may be maintained by one not in possession. Held, that though the judgment was in direct contradiction to the complaint, it would be modified on appeal so as to omit the part relating to possession, and would be thus affirmed, without costs to either party.</p> <p>Quieting Title.—M. Took Possession of Land in 1861, Claimed It as his own, cultivated it regularly, and paid all the taxes. After eleven years he sold to his brother, who took possession, improved the property, and paid the taxes. After five years he conveyed to plaintiff’s testator, who took possession, exercised acts of ownership, and held possession till 1881. M. knew of his brother’s possession, and knew that he sold to plaintiff’s testator, and that the latter was in possession and improving the property, and made no claim to the land, or any protest, till about 1880, when he discovered there was no deed on record of the original conveyance by himself. He then gave a deed of the land to defendant. . Held, that there was a presumption of title in M.’s brother, which was not rebutted by the fact that he originally entered under an oral contract of purchase, or by the fact that there was no deed on record conveying to him.</p> <p>Quieting Title.—In View of Such Presumption, It is Immaterial that declarations of M. that he had conveyed to his brother were erroneously admitted in evidence. Defendant knew that M. was not in possession when he conveyed to him, and there was no evdence, except the presumption arising from the deed, that defendant gave any consideration for the land. He knew that M.’s brother had conveyed the land as if