Branca v. Ferrin

• Decision Date: 24 June 1904
• Parties: BRANCA v. FERRIN
• Court: Idaho Supreme Court

77 P. 636

10 Idaho 239

BRANCA v. FERRIN

Supreme Court of Idaho

June 24, 1904

ACTION TO QUIET TITLE-WHEN CANNOT BE MAINTAINED-ADMISSION OF RECORD OF FORECLOSURE PROCEEDINGS AS EVIDENCE, ERROR WHEN.

1. Where it is shown that the action is to quiet title to land which is a part of the public domain, that the plaintiff or his predecessor in interest have never occupied the land or filed a possessory claim to such land, as provided in section 4552, Revised Statutes, it cannot be maintained.

2. Where it is shown that the plaintiff in the action neither in person nor by his predecessor in interest ever filed a possessory claim on land to which he seeks to quiet the title. nor was never in possession thereof, it is error to admit the record of the foreclosure proceedings through which he claims title when the defendant is in the possession of the premises.

(Syllabus by the court.)

APPEAL from a judgment of the District Court of Custer County, and from an order overruling a motion for a new trial. Judgment reversed. Honorable James M. Stevens, Judge.

Reversed and remanded. Costs awarded to the appellant.

Hawley Puckett & Hawley, for Appellant.

It will be noticed from an examination of the complaint in this action that the plaintiff alleges title in fee to an undivided one-half interest in the land in question. As we take it, under such an allegation, in order for the plaintiff to prevail in this action he must show that he is the owner as alleged in his complaint, and unless he shows, as alleged in his complaint, that he is the owner in fee of such undivided one-half interest, we contend that he cannot recover in this action, as the defendants deny the ownership in fee of the plaintiff and set up by way of further answer and cross-complaint, the fact that the land is unsurveyed government land, which, if true, cannot be owned in fee; and immediately upon the fact being shown that the land in question is unsurveyed public land, the plaintiff must fail in his action. As we understand it, a title in fee is the largest estate which a person can have, and is an absolute unqualified estate. If that be the law, an estate in fee to this particular property being in the government of the United States, the plaintiff has failed to substantiate his complaint, and he has no title whatever to the land or any portion thereof, it being a well-established rule of law that the plaintiff in an action to quiet title must first show title in himself. The only allegation of an adverse interest claimed by the defendants is as follows: "That the said plaintiff claims title in fee to the said premises, and that the said defendants, and each of them, claim an estate or interest therein adverse to the said plaintiff, as the plaintiff is informed and believes and therefore alleges." The allegation is not that the defendants claim some interest in the premises, but that the plaintiff is informed and believes that they do. This, we contend, is no statement of any cause of action. (Pfister v Dascey, 65 Cal. 403, 4 P. 393.)

E. E. Chalmers for Respondent.

The object of an action to quiet title is to enable plaintiff to dispel whatever may be regarded, not only by the defendant but also by third persons, as a cloud on his title, depreciating its value; and therefore, though a formal allegation of adverse claim may be necessary in the complaint under Code of Civil Procedure of California, section 738, providing that the action will lie to determine "adverse claims," it is immaterial whether or not defendant actually asserted such adverse claim before the commencement of the action. (Bulwer Con. Min. Co. v. Standard Con. Min. Co., 83 Cal. 609, 23 P. 1102 (1108); 4 Notes on California Reports, p. 65.) Section 738, supra, is identical with section 4538, Idaho Revised Statutes. Nick Millick conveyed an undivided one-half interest in the property in question to Galacio, who in turn conveyed the same interest to the defendants. Plaintiff obtained his title and right to the other undivided half interest by the foreclosure proceedings. Thus the plaintiff and defendants became tenants in common of said premises. As between tenants in common and cotenants, there can be no adverse possession unless there has been an ouster by the party claiming adversely, and the possession of one is the possession of all. (Buswell on Limitations and Adverse Possession, secs. 296, 297; Tyler on Ejectment and Adverse Enjoyment, pp. 926, 927; 1 Cyc. of Law & Pr., pp. 1073, 1078; Fry v. Payne, 82 Va. 759, 1 S.E. 197; Page v. Branch, 97 N.C. 97, 2 Am. St. Rep. 281, 1 S.E. 625-627; McCauley v. Harvey, 49 Cal. 497.) The mere occupation of one is presumed to be not adverse to the other cotenant. (Buswell on Limitation and Adverse Possession, secs. 299, 300; Wood on Limitations of Actions, pp. 558, 559; 1 Cyc. of Law & Pr., pp. 1071, 1075; Edwards v. Bishop, 4 N.Y. 61; Culver v. Rhodes, 87 N.Y. 348.) Possession, payment of taxes, and appropriations of rents and profits do not necessarily amount to adverse possession. (1 Cyc. of Law & Pr., p. 1076.) The plaintiff has established a legal title (as against all persons except the United States government) to an undivided one-half interest in and to the premises in controversy, and is, therefore, presumed to have been possessed thereof within the time required by law, and the occupation of the property (i. e., an undivided half interest) by another person is deemed to have been under and in subordination to such legal title, unless it appear that the property has been held and possessed adversely to such legal title for five years before the commencement of the action. (Idaho Rev. Stats., sec. 4039; 3 Idaho Code, sec. 3120; Martin v. Walker, 68 Cal. 317, 9 P. 185.) To acquire and establish title by prescription, the claimant must show that his adverse holding was open, notorious and continuous. (Mauldin v. Cox, 67 Cal. 387, 7 P. 804; Grayden v. Hurd, 55 F. 724, 5 C. C. A. 258.) Under the defendants' plea of adverse possession, no evidence is admissible except the evidence of title and their deed was for an undivided one-half interest. (Perkins v. Eaton, 64 N.H. 359, 10 A. 704; Greenhill v. Biggs, 85 Ky. 155, 7 Am. St. Rep. 579, 2 S.W. 774.) No length of possession will give title in land to a party who only claims to own the improvements on said land. (Davenport v. Sebring, 52 Iowa 364, 3 N.W. 403.) The possession of land, claiming only the improvements, and not the land itself, does not constitute adverse possession of the land. (Brown v. Simpson, 67 Tex. 25, 2 S.W. 644.) To effect ouster of cotenants, notice of adverse claim is required, or such possession that notice may fairly be presumed. (Culver v. Rhodes, 87 N.Y. 348; Trenouth v. Gilbert, 63 Cal. 407; Bath v. Valdez, 70 Cal. 350, 11 P. 724; Bailey on Onus Probandi, pp. 257, 258; Dignan v. Nelson, 26 Utah 186, 72 P. 936; Clymer v. Dawkins, 3 How. 674, 11 L.Ed. 778; M'Clung v. Ross, 5 Wheat. 116, 5 L.Ed. 46; Estate of Grider, 81 Cal. 571, 22 P. 908; Trenouth v. Gilbert, 63 Cal. 404, 407; Gage v. Downey, 79 Cal. 140, 21 P. 527, 855; Owen v. Morton, 24 Cal. 373.) The tenant in common out of possession has a right to assume that the possession of his cotenant is his possession until informed to the contrary, either by express notice or by acts and declarations, which may possibly be equivalent to notice. (Miller v. Myers, 46 Cal. 535; Aguirre v. Alexander, 58 Cal. 217; Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100; Bath v. Valdez, 70 Cal. 350, 11 P. 724; Carpenter v. Mendenhall, 28 Cal. 484, 87 Am. Dec. 135; McCauley v. Harvey, 49 Cal. 497.) Under the circumstances of this case, mere possession and payment of taxes is insufficient to establish adverse possession of title or right thereby. The exclusive occupation of the whole tract, and cultivation of the same, and payment of taxes, by a tenant in common, are not of themselves sufficient to constitute an ouster of the cotenant. (Packard v. Johnson, 51 Cal. 545, cited Phelan v. Smith, 100 Cal. 167, 34 P. 667; Packard v. Johnson, 57 Cal. 180, cited Oneto v. Restano, 78 Cal. 376, 20 P. 743; Gage v. Downey, 79 Cal. 159, 21 P. 527, 855.) It does not appear that defendants were holding said premises under color of title or claim of right for the full period of five years or that the taxes assessed were actually paid by defendants. (Idaho Rev. Stats. 4040-4044.) It is contended by defendants that this, being unsurveyed public land of the United States, is not the subject of a suit to quiet the title thereto, and that the action cannot therefore be maintained. An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim. (Rev. Stats., sec. 4538; 3 Code, sec. 3379, and notes; Fry v. Summers, 4 Idaho 424, 39 P. 1118.) An action to quiet title to lands is maintainable in this state, although the legal title thereto is in the government of the United States. (Orr v. Stewart, 67 Cal. 275, 7 P. 693.) Under the above section it is not essential that the complaint should aver the plaintiff to be the owner in fee; it will be sufficient if it appear that the plaintiff claims an interest in the land, and that the defendant asserts a claim of title adverse to the plaintiff's claim. (Stoddart v. Burge, 53 Cal. 394; Rough v. Simmons (Cal.), 3 P. 91; Rough v. Booth (Cal.), 3 P. 91.) The owner of an estate in lands less than a fee can maintain an action to determine an adverse claim made by another person. (Pierce v. Felter, 53 Cal. 18; Wilson v. Madison, 55 Cal. 5; Craft v. Merrill, 14 N.Y. 456; Lounsbury v. Purdy, 18 N.Y. 515; Watson v. Sutro, 86 Cal. 500, 24 P. 172, 25 P. 64; Tuffree v. Polhemus, 108 Cal. 670, 41 P. 806; 2 Estee's Pleadings, 4th ed., sec. 2527....