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51 Cal. 545

Packard v. Johnson

California Supreme Court

Decided July 1, 1876

California Supreme Court · decided 1876-07-01

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin.</p> <p>Ejectment to recover an undivided one-half of a tract of land, sold by the State to William K. Melville, as swamp land. Melville paid for the land and received a certificate of purchase on the thirtieth day of August, 1858. In February, 1859, Melville entered into a contract in writing by which he sold to one Ward his interest in the land acquired by the certificate of purchase. Ward took possession, but the contract was not acknowledged or recorded. On the twenty-sixth of April following, Melville, for a valuable consideration, executed, acknowledged, and delivered to Ward an assignment of the certificate of purchase, and authorized Ward to receive a patent for the land. On the fifteenth day of November, 1859, Ward sold and assigned to A. J. Sanor and the plaintiff, the certificate of purchase and land, and acknowledged the same so as to entitle it to record, and, on the same day, the certificate and both assignments were recorded. On the twenty-fifth of March, 1859, W. E. Cocke recovered a judgment in the District Court of said county against Melville, for $1072.26, which was docketed on the same day. On the twenty-second day of June, 1859, the sheriff sold the land under the judgment; Cocke became the purchaser, and on the seventh day of January, 1860, received a sheriff’s deed, which was recorded the same day. On'the twenty-fourth day of September, 1860, Cocke sold and conveyed to Sanor the entire tract of land, and Sanor, on the third day of December, 1864, conveyed the same to defendant Johnson. Sanor, for four years before his sale to Johnson, had been in the sole occupation of the premises, and at the time he sold had a substantial inclosure around the same. Johnson, from the time of his purchase, remained in such possession as is explained in the opinion. The suit was commenced in October, 1874. The defendant, in his answer, set up title in himself to the whole of the demanded premises, and pleaded the statute of limitations. The court rendered judgment for the defendant, and the plaintiff appealed.</p>

Cited by 2 later decisions — most recently October 1893

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1876-07-01

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By the Court:

¶1I. The answer of the defendant Johnson, set up title in himself to the whole of the premises described in the complaint, and was evidence of an ouster of the plaintiff sufficient, in that respect, to enable him to maintain this action.

¶2II. The title to the premises vested in the plaintiff and Sanor as tenants in common, for the assignment of the cer*549tificate of purchase from. Melville to them, was recorded before the delivery of the sheriff’s deed upon the Cocke execution sale.

¶3III. When the defendant Johnson entered under his purchase from Sanor, he was, in point of law and fact, a tenant in common with Packard. Sanor, his grantor, was in possession as tenant in common with Packard, and the title under which both Sanor and Packard held the premises was matter of record. In this view, it was necessary for the defendant Johnson, in order to sustain his defense based upon' the Statute of Limitations, to 'prove such an ouster of his co-tenant Packard, as Sanor must have proved had he remained in possession and set up an adverse possession in himself for the statutory period. In either case, an actual ouster of Johnson must have been proven in order to sustain the defense. By actual ouster we do not mean, of course, an actual turning out by the shoulder, but acts of such open and hostile occupation as have always been held necessary, in order to put the co-tenant upon notice or upon inquiry, which is the same thing. Mere exclusive occupation, removing of fences, and devoting the estate to the usual purposes of pasturage or husbandry, and payment of taxes by the co-tenant in possession, are not, of themselves, sufficient. The evidence in this case amounts to nothing more than these, and, though continued for more than five years, they are.not sufficient to bar the right of entry of the plaintiff.

¶4Judgment and order denying a new trial reversed) and cause remanded for a new trial.

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