WEST v. EVANS

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District Court of Appeal, First District, Division 2, California.

WEST v. EVANS.

Civ. 13014.

Decided: April 04, 1946

James P. Montgomery, of Oakland, for appellant. Eugene T. Nebiolo, of Oakland, for respondent.

James and Melinda West were husband and wife. In 1917 Melinda West secured an interlocutory decree of divorce from James West and said decree awarded Melinda West an undivided three-quarter interest and James West an undivided one-quarter interest in certain real property, the subject of this action. This decree was never made final. James West died in 1919. The plaintiff as a child was taken into the family by James and Melinda West. After the interlocutory decree of divorce was entered plaintiff and Melinda West lived on the property in suit. In 1927 Melinda West legally adopted plaintiff and in the same year executed and delivered to plaintiff a deed purporting to convey the entire fee in the property to him. In 1931 plaintiff recorded this deed. After the delivery of the deed he paid all taxes on the property and he lived on the property with Melinda West continuously from the time of the entry of the interlocutory decree until 1937, when he was married and moved to another home. James and Melinda West had four children the issue of their marriage none of whom lived on the property at any time after the deed to plaintiff was executed in 1927. After Melinda's death the plaintiff sued to quiet title to the property against the appellant, as administratrix of the estate of James West deceased. From a judgment for plaintiff, defendant appeals.

Appellant, relying on the rule that the possession of one cotenant is in law the possession of all, argues that respondent's possession was at no time adverse to the heirs of James West as to the one-quarter interest owned by them. Respondent recorded the deed from his adopted mother in 1931. He resided on the property from that time continuously until 1937, paying all taxes. He took under a deed purporting to convey the entire fee. The finding of the trial court that he thereby gained title by adverse possession finds support in Satariano v. Galletto, 66 Cal.App.2d 813, 153 P.2d 201; Pease v. Gibson, 37 Cal.App.2d 353, 99 P.2d 353; and Johns v. Scobie, 12 Cal.2d 618, 86 P.2d 820, 121 A.L.R. 1404.

Appellant attempts to distinguish the latter two cases on the ground that in those cases the adverse claimant was not aware of the outstanding cotenancy interest. Satariano v. Galletto, supra, cannot be so distinguished, for there a widow who was administratrix of her husband's estate was held to have acquired a title against the estate by adverse possession under color of a probate order of assumed invalidity. The case before us is much stronger since plaintiff was a stranger to the title. ‘Registration of a deed, being constructive notice of its existence and contents and of all other material facts which an inquiry thereby reasonably suggested would have disclosed, is held to be constructive notice to cotenants out of possession of the adverse claim of a stranger where the deed from the cotenant in possession purports to convey to him the entire estate and he makes entry and retains possession thereunder.’ 62 C.J. 438, 439.

‘A conveyance to a stranger to the title, by one cotenant, by an instrument purporting to pass the entire title in severalty, and not merely such cotenant's individual interest, followed by an entry into actual, open, and exclusive possession by such stranger under claim of ownership in severalty, amounts to a disseisin of the other cotenants, which, if continued with the necessary requisites for the statutory period, will ripen into good title by adverse possession.’ 1 Am.Jur. 828, 829.

The delay in recording the deed presents no difficulty, since over five years of actual occupancy by respondent after the recordation was proved.

Judgment affirmed.

DOOLING, Justice.

NOURSE, P. J., and GOODELL, J., concur.