GARRETT CO v. STATES (1934)

This is an appeal by the defendants from a judgment for the plaintiff in an action to quiet title to certain parcels of land in Lassen county.

The defendants S. J. States at all times involved herein was in actual possession of the property. His claim of possession initially was founded upon a patent issued to him by the United States government in 1914. In 1918 one Barcley, then president of a Nevada corporation, called Workers' Association, offered, on behalf of the corporation, to buy the property from States for the sum of $500 cash and $2,500 in stock of that corporation. States accepted the offer, and on June 28, 1918, delivered to Barcley a deed to the property, whereupon Barcley agreed to return and deliver to the defendant States the cash and stock. Barcley never returned, nor was payment ever received. The deed was recorded on July 3, 1918. On October 9, 1918, the Workers' Association mortgaged the land to Poteet, to secure a loan of $1,500. Poteet assigned to Fannie Barcley, who assigned to the plaintiff. The mortgage was foreclosed, and a commissioner's deed under foreclosure sale was delivered to the plaintiff and recorded on July 19, 1923.

The plaintiff paid the 1919 taxes on the property. The 1920, 1921, 1922, and 1923 taxes were paid by States. He attempted also to pay the 1924 taxes, but the amount tendered was refused by the tax collector because the taxes had already been paid by the plaintiff. The plaintiff paid the taxes for all the subsequent years.

The action to quiet title was commenced by the plaintiff in April, 1930. Both parties set up their respective, claims. The defendants in addition pleaded, as a bar to the plaintiff's claim section 318 of the Code of Civil Procedure, and that the defendant States had title by adverse possession. The trial court found for the plaintiff and entered judgment accordingly.

The defendants contend first that the placing of the deed with Barcley was not in fact a delivery of the deed, but that if it was a delivery it was a delivery in escrow only, to take effect when the condition had been complied with, that is, the cash and stock delivered.

That Barcley was the president and an officer of the Workers' Association authorized to receive the deed is not disputed. The delivery to him as agent of the grantee was therefore absolute and took effect freed from any condition imposed upon Barcley by the grantor. Civ. Code, § 1056; see 9 Cal. Jur. 165; Wipfler v. Wipfler, 153 Mich. 18, 116 N. W. 544, 16 L. R. A. (N. S.) 942; Hubbard v. Greeley, 84 Me. 340, 24 A. 799, 17 L. R. A. 511.

The defendants make various contentions with respect to their claim of title by adverse possession. It is true that States at all times was in actual possession of the property. But the plaintiff was the owner within five years of the commencement of the action. He is presumed to have had possession within the meaning of sections 318 and 321 of the Code of Civil Procedure, to which the possession of the defendant States is deemed to have been subordinate unless possession adverse to the plaintiff's legal title for five years before the commencement of the action has been proved. It has long been settled in this state that payment of taxes assessed against the land for a continuous period of five years is a necessary element in the establishment of title by adverse possession. Code Civ. Proc. § 325; 1 Cal. Jur. 563, and cases cited. Any break in the continuity of the payment by the adverse claimant inures to the benefit of the owner, and there is no duty on the part of the tax collector to accept payment from the adverse claimant when the taxes have already been paid by the owner. Glowner v. De Alvarez, 10 Cal. App. 194, 101 P. 432.

The claim of the defendants was not established. The judgment is affirmed.

SHENK, Justice.

We concur: WASTE, C. J.; LANGDON, J.; PRESTON, J.; CURTIS, J.; IRA F. THOMPSON, J.