MOORE fl. MILLER.
hjtve ,theiwife,.assert her right, and leave the creditor nothing of value beyond; the incumbrances. I am not ready to concede that the courts are powerless to give relief in such a case, upon proof that the investment 'filS made in' that way for the purpose, of defrauding creditors. The case in hand, however, is not like the one supposed, in which, the title having been in the husband, the wife's assertion of right would have support the letter of the law, if not in its spirit, while in this case the claim is entirely outside the letter of the statute, and has no support in its spirit or, in considerations of justice and fair dealing. Exceptions overruled.
MOORE fJ. MILLER
(Oircuit Court, B. D. CaZifornia. August 8, 1890.)
LlJIITATlON OJ' ACTIONS-RUNNING OJ' STA-Tun.
The ,statute of limitations begins to run against a suit to quleh UtJe·from the time the defendant takes possession of the land.
In Equity. F. B. Stratton and Jiinlayaon « Jiinlayson, for complainant. Mastick, Belcher « Mastick, for defendants. Ross, J. This iEl a bill in equity to quiet title to a certain tract of under. the provisions of section 738 of the Code of Civil Procedure of California, and by stipulation of counsel the sole point for decision is whether or not the suit is barred by the statute of limitations. The facts in relation to that question are conceded to be truly set out in the amended answer, and are, in substance, as follows: The land is a thirtysixth section, and was granted to the 8tate of California by the act of congress of March 3, 1853, and the title of the state thereto became complete and absolute August 6, 1855. On the 7th of April, 1874, the state issued its patents for the land to ODe Hewlett, and on April 17, 1874, Hewlett conveyed his interest therein to defendants, who thereupon and on that day entered into possession of the premises under claim of title, exclusive of other right, founding their claim upon the patents to Hewlett and the conveyance from him, and without any knowledge of any defect in that title; and at all times since they have had and maintained, and now have and maintain, actual, continuous, open, and notorious possession of the premises, claiming title thereto in good faith uoder said patents and conveyance, adversely to the state of California and to complainant and his grantors and predecessors in interest, and to the whole world; and during all of that time defendants had, and now have, the premises protected by a substantial inclosure, and have used, and still use, the same for pasturage. Complainant claims title under certain certificates of purchase issued by the state June 16, 1869, to one Porch and one Mardis, whose title, if any, is vested in complain-
ant. These certificates were duly and regularly issued, and the purchasers paid to the state thereon 20 per cent. of the purchase price, and one year's interest on the balance; but no further payments have been made. Neithel' the state of California, nor complainant, nor any of his grantors or predecessors in interest, have received the rents or profits of the premises, or of any part thereof, at any time within the space of 10 years preceding the commencement of this suit, and said state has never since issuing the patents to Hewlett asserted or claimed any title to or interest in thQ. premises. The amended answer sets up these facts, and also alleges that the right or title claimed by complainant did not accrue to the state, or to complainant, or to any of his grantors or predecessors in interest within 10 years before the commencement of the suit. and also pleads in bar of the action sections 315 and 316 of the Code of Civil Procedure of California, _which-read asioBows: "Sec. 315. The people of this state will not sue any person for or in respect to any real prop-erty, or the-issues or profits thereof, byreason of the right or title of the people to the same, unless (1) such right or title shall have accrued within ten years before. any action Or other proceeding for the same ill oommeneed; or'(2) the people, or t110se from whom they claim. shall have received the rents and profits of su'ch real property, or of some part thereof, within the space of ten years. - Sec. 316. No action can be brought for or in respect to real property by any person claiming under letters patents or grants from this slate, unless lhesame might have been commenced by the people, as herein specified in case such patent had ilOt been issued or grant made." Applying these provisions of the statute to the conceded facts of the case; it does not seem to me to admit of doubt that the suit is barred. Unless the state could have commenced the suit had no grant been made 'by it, the complainant is barred by the provisions of section 316, and whether or not the state could have done so must be determined by refto section-315. By that section the legislature declared that the -people should-not sue any person for or in respect to any real property by reason of-their right or title 'to the same unless such right or title shall have accrued within 10 years before the commencement of the suit, PI' the people, or those from whom they claim, shall 'have received the rents and profits of such real property, or of some part thereof, within the space of 10 years. It isa conceded fact that neither the people of the state nor thosfl from whom -they claim have received the rents or profits of the land in controversy, or of any part of it, within the space of 10 years next preceding the bringing of this suit. Did their right or title accrue within 10 years next bE-fore its commencement? Manifestly I the right and title of the people to the property accrued at least as early as the grant from the general government became complete and absolute, which is conceded to have been August 6, 1855. But, of course, until there was some interference with that right or title no cause of action could accrue. The complainant contends that the suit in question is not within the statute because it is i10t brought by reason or his right or title to the prbpertY,'but by reason of the adverse claim of the defendants. Clearly '!ihis is not so. ,Neither of those things alone, in this case or in