Cory v. Santa Ynez Land & Improvement Co.

This is an action of trespass, in which the plaintiff recovered a judgment for $368.50 and costs. The corporation defendant appealed to the district court of appeal from the judgment and from an order denying a new trial. The justices of that court having been unable to agree as to the proper disposition of the appeal, the cause was transferred to this court for hearing and decision.

It appears from the pleadings and the uncontradicted evidence in the record that prior to the 28th of January, 1888, the appellant had subdivided a large tract of land in Santa Barbara County, and that on that date it conveyed to J. S. Shoemaker,—then a resident of Reno, Nevada,—a subdivision known as lot No. 13, containing forty acres. The agreed price of the lot was three thousand dollars, of which one thousand dollars were paid at the date of the conveyance. For the balance Shoemaker executed two promissory notes for one thousand dollars each, payable, respectively, January 20, 1900, and January 20, 1901, and secured by mortgage of the land.

We think it clear, as above stated, that appellant was in possession of the mortgaged premises by Shoemaker’s tacit, if not by his express, agreement, and for the purpose of additional security. Indeed, we think the evidence of an express agreement to that effect is free from any substantial conflict. There are many cases in which actions speak louder than words, and here is presented a series of acts of the parties of a highly significant character, every one of which consists with the testimony of Robinson and conflicts with the testimony of Shoemaker. It was a most reasonable and moderate condition of remitting one third of the purchase price of the land and all accrued interest, and extending the time of payment of the other third, that the appellant should have the possession of the land as further security, and it was a condition which, while beneficial to the appellant, so far from imposing any hardship upon Shoemaker, entirely comported with his interest and convenience. The'omission of appellant to foreclose not once only, but twice in succession, until the statute had barred that remedy, is strong evidence that its officers, including Robinson, considered that they had other sufficient security, and Shoemaker’s acquiescence for a period of ten years in the possession of the appellant is to my mind conclusive that he knew it to be a rightful possession.

But it is contended that the appellant by causing the land to be assessed to it independent of the mortgage, thereby initiating an adverse claim which would ripen into a prescriptive title at the end of five years, forfeited its right of possession as mortgagee, and restored to Shoemaker the right to recover the possession without paying his debt. If this is true, it places a mortgagee in possession after the action to foreclose is barred in this position: While he can keep the land forever if he makes no other claim to it than that of mortgagee, he can never sell it, because he can never make an indefeasible title, and he can never put improvements on it which will make it profitable to the mortgagor to redeem. The land is out of the market for all time, and forever condemned to lie idle and unimproved. Such a result is opposed to public policy

If this view is correct, the appellant was in the peaceable and rightful possession of lot 13 on the 20th of October, 1903, when respondent made his attempt to take possession, It is extremely doubtful whether the respondent ever had anything more than a mere scrambling possession of any part of the premises. He had gone inside of appellant’s inclosure upon land every foot of which, except forty acres belonging to a third party, was in the exclusive possession of the appellant, and was attempting to inclose the forty acres composing lot 13. He had pitched a tent, marked the corners of the lot, and set some posts on one side, when on the 10th of November he was dispossessed. By these wrongful acts he had gained at most a right to recover in an action of forcible entry. He was himself a trespasser, and by virtue of his twenty days’ occupancy had gained no right except that which was secured by a statute whose principal object is to prevent breaches of the peace by punishing the aggressor. He could perhaps have recovered in forcible entry, but he cannot recover damages in trespass against the party rightfully entitled to the possession. (Burnham v. Stone, 101 Cal. 164 , 172, [ 35 Pac. 627 ].)

It is unnecessary to consider the objection (not raised by respondent, but suggested in one of the opinions transmitted from the district court of appeal) that the errors specified in the instructions of the court cannot be considered because it is not made to appear that they were excepted to before the jury retired. I think it does sufficiently appear that exceptions were taken in time, but assuming they were not, the instructions appear in the record and serve to explain the erroneous verdict of the jury. They imply that the complete inelosure of the larger tract of which lot 13 was a portion was not evidence of possession of that lot by appellant if there was other land (referring to the forty-acre lot belonging to a

The judgment and order of the superior court are reversed.

McFarland, J., Henshaw, J., and Lorigan, J., concurred.

I concur in the judgment and in .all of the opinion of the chief justice, with two exceptions.

The opinion appears to suggest that there was no substantial conflict in the evidence in regard to the fact of there having been an agreement between Shoemaker and Robinson, as agent of the Santa Ynez Land and Improvement Company, to the • effect that that company should, as mortgagee, take and retain possession of the mortgaged land until the mortgage debt was paid, and in regard to there having been any express consent thereto by Mr. Shoemaker. I think there is a substantial conflict on this subject, but Mr. Shoemaker does not dispute the fact that the company was in the exclusive, actual, and peaceful possession of the land continuously, with his knowledge, receiving to its own use the rents and profits thereof, from 1893 to 1903, nor the fact that during that period he made no objection thereto and demanded no accounting,—that, in short, he acquiesced in its possession as mortgagee. This being the ease, the question whether or not there was an express agreement or a formal consent is immaterial. The company must be deemed to be lawfully in possession as mortgagee by implied agreement and by tacit consent. The fact of such implied agreement arises from the circumstances stated, and neither the circumstances nor the implied agreement arising therefrom is denied. The case comes Avithin the rule laid down in Burns v. Hiatt, 149 Cal. 623 , [ 117 Am. St. Rep. 157 , 87

In the statement in the opinion suggesting that the record sufficiently shows the taking of an exception to the instructions, I understand the chief justice to be stating his personal opinion and not that of-the court.

Sloss, J., and Angellotti, J., concurred.