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District Court of Appeal, Fourth District, California.


Civ. 2206.

Decided: May 06, 1938

Harvey, Johnston & Baker and T. H. Werdel, all of Bakersfield, for appellant. Samuel Taylor, of Bakersfield, for respondent.

This action was commenced by respondent James T. Johns, as plaintiff, against appellant Lena A. Scobie, as administratrix of the estate of Isaac Johns, deceased, to obtain the reformation of a deed dated March 8, 1920, alleged to have been executed and delivered by the decedent in his lifetime to respondent and to be defective in describing less land than that intended to be conveyed. Appellant filed an answer denying everything alleged in the complaint, which answer she subsequently amended by pleading additional defenses which need not for our present purposes be recited in detail. She also filed a cross–complaint seeking, in behalf of the decedent's estate, to quiet title, both to the property described in the complaint, as actually mentioned in the deed, and also to the additional property claimed by respondent as constituting the rest of that intended to be included in the conveyance. Respondent answered this cross–complaint claiming, as against the decedent's estate, and appellant as administratrix thereof, title by adverse possession to the whole of the property mentioned, asserting that such adverse possession had been maintained for more than five years before the commencement of the action, and that it was under a claim of title on respondent's part, exclusive of other right and hostile to any claim or title on the part of the decedent's estate, asserting that respondent had, during such five years paid all taxes levied and assessed on the land and further invoking the bar of sections 318, 319 and 322 of the Code of Civil Procedure. The trial court found in respondent's favor on the issues tendered by the cross–complaint and his answer thereto and on that basis rendered judgment quieting his title to the entire property without passing on any question of reformation of the deed. The present appeal is from this judgment.

The evidence disclosed that respondent was a nephew of the deceased and that both were bachelors; that for many years prior to the decedent's death the two lived together in a two–room adobe cabin on part of the land here in dispute, had their beds in the same room, and both kept their papers in the same trunk which was at some times locked and at other times unlocked. Uncle and nephew were jointly engaged in the cattle business on the property. The land embraced 157.55 acres, for which the uncle held a government patent, also kept in the trunk referred to. On March 8, 1920, the deceased caused to be prepared by one Allen, signed and acknowledged, a grant deed in respondent's favor for about 45 acres of land, the rest of the 157.55 acres having, according to respondent's claim, been omitted by reason of a mistake in the description. This deed, according to respondent, was brought into the house by decedent, who said to respondent, “Here is the deed,” whereupon respondent looked at it and put it in the trunk. Something like a year later respondent had Allen prepare another deed in decedent's favor, said to have described all of respondent's property so far as patented. This deed, respondent testified that he gave to decedent to read, after which decedent placed it also in the trunk “with the rest of the papers.” According to respondent, however, it did not include the property embraced in the deed from his uncle to him but only affected property other and different from said 157.55 acres, which other property was owned by the respondent and over which he and his uncle were accustomed to run their stock.

Respondent testified that he did not intend to pass title by this last–mentioned deed to his uncle, the decedent, but as to its purpose that: “If anything happened to me so I would have it, if I happened to die or get killed I had no certainty of life. I was trying to protect him.”

Thereupon the following colloquy ensued:

“Q. And the same thing applied with the deed made out by your uncle to you, made out to protect you in the event he died? A. That was the understanding, he was trying to protect me and the interest I had there.

“Q. If he died then you would have the deed? A. Yes.

“Q. If you died he was to have the other deed, that was it, wasn't it? A. I deeded mine to him in case anything happened to him before I passed away, I was protecting him as our partnership.

“Q. And if he passed away first he was to protect you? A. Certainly.

“Q. And in the event both lived both kept your own properties? A. Yes sir.”

Issac Johns, the uncle, died on December 26, 1924, whereupon respondent promptly recorded the deed from the decedent to himself and later burned the deed from himself to the decedent. Respondent has ever since occupied the whole 157.55 acres in controversy, all of which has been and is under fence, and has erected an 8–room dwelling upon it. No question about the ownership of the property appears to have been raised by anybody until 1936, in February of which year respondent says that he was told through an abstract company that his title was defective, and on April 8 of which year appellant Lena A. Scobie secured letters of administration on the decedent's estate, whereupon the present litigation ensued.

In our opinion it sufficiently appears from the record that Issac Johns died intestate and that his heirs at law are five nephews and nieces, to wit, W. E. Johns, Elizabeth A. Wood, respondent James T. Johns, appellant Lena A. Scobie (administratrix), and Johnathan Jones. At the trial Mrs. Scobie was asked directly what heirs decedent left and answered giving this list. No objection was made to this testimony at the time it was given, though counsel for respondent now claims that it ought to be disregarded, both because the subject is not involved in the pleadings and for the further reason that the testimony is a conclusion of law since, although the evidence itself disclosed that the decedent died a bachelor, there is nothing in it specifically to negative the possibility of his having left parents, brothers or sisters surviving him. The inquiry as to who are the decedent's heirs is not an inquiry as to an ultimate fact in the present case, but only as to probative facts involved in the effort to determine whether respondent's possession of the land involved has been adverse to the estate as claimed. The circumstance that merely probative facts are not pleaded is no obstacle to proving them if relevant to the issues that are pleaded. Counsel for respondent had full opportunity to cross–examine Mrs. Scobie and inquire whether or not decedent left any nearer relatives than the nieces and nephews named and omitted either to do so or to move to strike out as a conclusion her statement that they were decedent's heirs. Neither did he introduce any evidence to the contrary or make any statement at the trial of any claim to the contrary. In these circumstances we think Mrs. Scobie's undisputed statement on the subject must be taken to be true.

Apart from such effect as the deed from the deceased to the respondent may have on the situation, we think it clear that there is nothing in the circumstances, as we have recited them, to give any color to the respondent's claim to title by adverse possession as against either his coheirs or the estate. At the moment of the decedent's death in December, 1924, there being an intestacy, the title to all of his estate vested in his heirs at law, whether known or unknown, Probate Code, § 300; former section 1384, Civ.Code; Smith v. Olmstead, 88 Cal. 582, 586, 26 P. 521, 522, 12 L.R.A. 46, 22 Am.St.Rep. 336; Phelan v. Smith, 100 Cal. 158, 164, 34 P. 667, 669; Bates v. Howard, 105 Cal. 173, 183, 38 P. 715, 718; Murphy v. Clayton, 114 Cal. 526, 528, 43 P. 613, 46 P. 460, 461; Estate of Packer, 125 Cal. 396, 399, 58 P. 59, 60, 61, 73 Am.St. Rep. 58; State v. Miller, 149 Cal. 208, 210, 85 P. 609, 610. Since there were five nephews and nieces all standing in the same degree of relationship to the decedent, they became, upon the decedent's death, tenants in common with each other. As was said in Wood v. Henley, 88 Cal.App. 441, 452, 263 P. 870, 876: “The dominant attribute of a tenancy in common is that the cotenants hold the common land by unity of possession, for which reason there can be no specific or determinate portion of the common land which any one of such tenants can claim as his in severalty. See Civ.Code, §§ 685 and 686. * * * It follows, therefore, that a tenant in common of an undivided interest in the common property is entitled to the possession of the whole thereof as against all persons except his cotenants. Each of such tenants has the right to enter upon and occupy the whole and every part of the common lands. This being so, such a tenant has no right to exclude his cotenant from any portion of the common lands. The logical consequence of the foregoing propositions is that the possession of one cotenant is possession for all. * * * And each has a right to assume that the possession of his cotenant is his own possession, until informed to the contrary, either by actual notice or by acts and declarations which may be equivalent to notice.”

Until a tenant has notice, either actual or constructive in some form that the possession of his cotenant has become hostile, it will be deemed in law to have been amicable, whatever may have been the actual intent of the cotenant in physical possession. Lick v. Diaz, 30 Cal. 65; Miller v. Myers, 46 Cal. 535; McCauley v. Harvey, 49 Cal. 497; Packard v. Johnson, 51 Cal. 545; Packard v. Johnson, 57 Cal. 180; Aguirre v. Alexander, 58 Cal. 21, 28; Winterburn v. Chambers, 91 Cal. 170, 180, 27 P. 658, 660; Gage v. Downey, 94 Cal. 241, 29 P. 635; Faubel v. McFarland, 144 Cal. 717, 78 P. 261. In the instant case, although it does appear that respondent has erected an 8–room house on the premises which might possibly, in view of such authorities as Smith v. Barrick, 41 Cal. App. 28, 182 P. 56, constitute notice to his nieces and nephews that he had begun to hold adversely to them, it does not appear whether or not such house was erected more than five years prior to the commencement of this action, and we find nothing in the other circumstances disclosed by the evidence that can measure up to the requirement of notice to cotenants of an intention to oust them. But even if there be an actual adverse holding by one heir of a decedent against other heirs who are his cotenants, accompanied by such notice as, in due time, to invest him as against them with a title by adverse possession, the acquisition of such title is no ouster of the estate nor does it free the heir who has gained it from holding in subordination to the estate. It is true, that just as an heir can convey his interest by a deed, so he can, by possibility, lose it by the adverse possession of a coheir “but the person who takes it by such adverse possession under the statute takes it subject to administration in the same manner that a grantee would.” Smith v. Barrick, supra, page 32, 182 P. page 58.

As was said in Blair v. Hazzard, 158 Cal. 721, 725, 112 P. 298, 300: “From the very nature of the case, title by adverse possession cannot be acquired against the administrator or executor. Such a title would be as foreign to our law as would be the claim of a tenant that he had acquired title by adverse possession against his landlord while holding under strict tenancy. The entry of a devisee or heir under such circumstances and his holding after, as matter of law, cannot be in hostility to the estate's rights. By the very language of the law it is in subordination to those rights. The administrator's or executor's possession never has been and never will be construed as possession in hostility to the heir or devisee, per contra, the possession of the heir or devisee, while the estate is in course of administration, can never be construed to be in hostility to the rights over that property with which the law clothes the estate.” See, also, on the subject Phelps v. Grady, 168 Cal. 73, 76, 141 P. 926, 927.

There is nothing in the claim that an heir or devisee can any more gain title by adverse possession against an estate upon which administration has not been instituted, or in respect of which the starting of administration proceedings has been delayed until after the lapse of the five years during which the adverse possession is claimed to have gone on, that he can, by such adverse possession, gain title against an estate in which administration is all the time in progress. For that proposition Blair v. Hazzard, supra, is itself authority for there, though administration had once started, the executor had died and the administration been suspended for many years before a successor was appointed, and as will appear from the transcript in that case, it was during that very time that the purported adverse possession relied on was claimed to have occurred. Delay in instituting probate proceedings or their suspension after being instituted cannot conceivably place an heir in the position of a stranger to the decedent's title, nor have the authorities cited by respondent as bearing on the subject any application to any such facts.

It being thus apparent that, apart from the consideration of the effect of his uncle's deed to him of March 8, 1920, the evidence fails to show that respondent had in fact acquired, by adverse possession, any exclusive title to all or any of the 157.55 acres in controversy as against the other heirs of the decedent, however much it might have been a legal possibility for him to have so gained one as against them; and it being altogether a legal impossibility, apart from a consideration of the effect of that deed, or some conveyance otherwise than through and under the estate, for him––being an heir––ever to gain any title by any length of adverse possession as against the decedent's estate, we come to consider what effect this deed really has upon the situation. Appellant claims in limine that it has no effect for want of delivery. The trial court did not undertake to find in terms whether it had been delivered or not. Since, however, there can be no delivery without an intention to deliver in the sense of parting with control, and respondent in his testimony, already quoted, has admitted that the intention of himself and his uncle was that, if both lived, each was to keep his own property, if we were to attribute to the trial court, as implicit in the decree made by it, any finding that the deed was delivered we would have to assume in so doing that the trial court had so found in the teeth of this admission. That would be altogether too violent an assumption to be entertained. On the other hand, if the deed was not delivered there can be no case for its reformation. For the purpose of the present decision then; that is, as bearing on the inquiry whether the judgment under attack can be sustained in whole or in part, the case must be considered upon the theory that no such delivery has been proved. The only question that remains, then, is what color, if any, respondent's action in taking from the trunk and recording this deed, assuming it to have been in fact undelivered, lends to his claim to have established a title by adverse possession to the property involved. It is clear that to sustain his present judgment on that ground he must first show that such adverse possession has extinguished the interests of his coheirs for, patently, if they retained any undivided interests, these will remain subject to administration and he cannot be entitled to the judgment as rendered. But even if his use of this deed can be treated as having given notice to his coheirs of his having assumed a possession hostile to them this cannot be true as to the whole 157.55 acres, but only as to the 45 acres or thereabouts described in the deed since, as held in Re Wasson, 54 Cal.App. 269, 272, 273, 201 P. 793, 794, “a deed is color of title only as to land actually described by it” (citing 2 C.J. 177, par. 339); also in Johnson v. Buck, 7 Cal.App.2d 197, 202, 46 P.2d 771, 773, 774.

Let us suppose, however, that his use of an undelivered deed did so characterize his acts as to amount to constructive notice to his coheirs that his presence was hostile and that the lapse of the statutory five years has invested him with their former rights, still, so far as this action is concerned, he has gotten no farther. He is not here litigating with his coheirs but with the administratrix of his uncle's estate, in her capacity as such. As against her it is not enough to show that his possession is under color of title. He again squarely encounters the principles of law announced in such cases as Blair v. Hazzard, supra, and Smith v. Barrick, supra, which forbid him, being an heir, to institute any adverse possession against the estate as such. See, also In re Estate of Sweitzer, 215 Cal. 489, 11 P.2d 633. In that connection, we cannot see that it makes an iota of difference whether such attempted adverse possession is brazenly tortious or founded on a writing purporting to give color of title. An heir cannot gain any title by adverse possession whether in bad faith or in good faith against the estate, and in the absence of a conveyance investing him with actual title it does not matter whether his possession in under some instrument relied on as giving color of title or not. By virtue of the fact that respondent is an heir of his uncle, he is confined to one or the other of only two possible means of establishing a title adverse to his uncle's estate. He must either show that he claims under a valid conveyance actually delivered by his uncle in his lifetime, which we cannot hold that the evidence could have warranted the trial court in here finding him to have; or else he must prove that he claims under a conveyance from some independent source vesting him with title superior to that of the estate, which is not here claimed at all.

Judgment reversed.

HAINES, Justice pro tem.

We concur: BARNARD, P. J.; MARKS, J.