Patchett v. Webber

Further consideration of this case after hearing and determination by the court of appeal in the first instance satisfies us that the reasoning and conclusion of the court of appeal are correct and we, therefore, adopt the opinion of Mr. Justice Nourse as the opinion of this court, as follows:

“This action was commenced on December 11, 1922, for the purpose of quieting title to certain property situated in the city of Napa. Plaintiffs had judgment quieting their title to a portion of the property involved and defendant had judgment awarding him the remaining portion. From the portion of the judgment adverse to him the defendant has appealed upon a record prepared under section 953a, Code of Civil Procedure.

“On May 5, 1875, John M. Patchett duly executed and recorded' a declaration of homestead upon a tract of land, a portion of which is involved in this suit. The entire tract was his separate property and comprised at the time about six acres upon which he resided with his family. Patchett died on August 13, 1876, leaving children by a former wife, who were the predecessors in interest of the plaintiffs in this action, and also leaving surviving him his wife, Martha

“On September 23, 1876, Martha Patchett, the widow of John M. Patchett, listed the homestead property in her inventory, which was filed with the papers of the estate of John M. Patchett, and at the same time took possession of the property and it appears in the amended complaint filed in the ease of Patchett v. Bradshaw, which will hereinafter be referred to, that since the 14th day of February, 1879, the said Martha Patchett exercised complete and exclusive control and possession over all of said property, claiming it as her own. From the same pleading it appears that immediately upon the death of Martha Patchett (August 29, 1904), Benjamin Bradshaw entered into the possession of the same premises and claimed the same ‘as the property of and belonging to the estate of Martha Patchett, deceased.’ The action just referred to was instituted by Charles H. Patchett, one of the plaintiffs herein, and the grandson of John M. Patchett, the original homesteader, he having been duly substituted as administrator with the will annexed of his grandfather’s estate following the death of Martha Patchett. The action was brought against Benjamin Bradshaw as the executor of the estate of Martha Patchett and

“Subsequent to the entry of the foregoing decree the proceedings in the estate of John M. Patchett were concluded by the filing of a final account and a petition for final distribution by Charles Patchett, the plaintiff in the litigation just referred to. The administrator did not include in either of these documents the homestead property and made no mention of any claim thereto on behalf of the estate or the heirs. In due course a decree of distribution was filed in that estate wherein the entire estate was distributed to the plaintiffs in the action before us or to their predecessors

“On June 18, 1909, Benjamin Bradshaw, while in possession of the property as executor and sole heir of his mother’s estate, duly filed for record a subdivision of the entire tract of land comprising the homestead. In this subdivision a street was opened directly through the middle of the entire tract and lots were laid out in the usual way, each having a frontage of approximately 54 feet. Thus by the subdivision the six-acre tract was divided into two blocks numbered block 1 and block 2; block 1 containing sixteen separate lots and block two containing fifteen. On November 1, 1909, the entire property, as originally described in the homestead declaration, was distributed to Benjamin Bradshaw in closing the estate of Martha Patchett, and immediately thereafter sales were made and deeds were executed by said Bradshaw conveying some sixteen of the lots as segregated by Bradshaw’s subdivision. These deeds were executed over a period commencing November 16, 1909, down to March 4, 1922. All were duly recorded and in each instance the deed described the lot as being a part of block 1 or 2, as shown on the ‘Map of Bradshaw’s Subdivision, a part of Patchett’s Addition in the City of Napa, California, ’ giving the number and date of the filing of such map. On July 22, 1922, Benjamin Bradshaw died and the defendant, as public administrator of the county, was duly appointed as administrator of the estate.

“This action was commenced on December 11, 1922, by the plaintiffs, who are the descendants of John M. Patchett, deceased, the issue of his marriage prior to his marriage with Martha Bradshaw. The complaint is in the usual form of an action to quiet title to property alleged to be subjected to an adverse claim by the defendant. The plaintiffs carved out of the original homestead tract all the tract of land delineated on Bradshaw’s subdivision recorded in the manner above referred to which had not prior to the commencement of the action been sold by Bradshaw to other individuals. They are claiming, therefore, all the lots of land appearing upon this subdivision which were held in the possession of Bradshaw at the time of his death, but omit from their pleading all reference to those lots of land which he had sold prior fo the commencement of the action, as well as the

“The plaintiffs’ claim is based upon the theory that they arc the successors to the remaindermen, under the will of John M. Patchett, to the entire estate; that though the property is claimed by them as devisees under the will, in accordance with section 1265, Civil Code, they insist that the homestead did not become a part of the estate of John M. Patchett, and that they are accordingly not bound by the judgment in Patchett v. Bradshaw, which awarded the property to the predecessor of the defendant herein. It is the defendant’s contention that the homestead did not vest in the predecessors of the plaintiff, but that it became a part of his estate; that the plaintiffs are therefore estopped by the judgment in Patchett v. Bradshaw; that the defendant and his predecessor in interest have acquired title to all the lands by adverse possession, and that the devise in the will of John M. Patchett, purporting to grant a life estate only to Martha, is invalid to that extent and in fact constituted a devise of the entire estate to her. The trial court followed plaintiffs’ theory of the case to the full extent urged by them excepting as to the one small lot upon which the home was located, and as to that the court found that Bradshaw had acquired title thereto by prescription. Judgment was entered accordingly awarding all the property in suit to the plaintiffs other than lot 13, which was awarded to the defendant. The defendant has appealed from all that portion of the judgment adverse to him.

[1] “On this appeal the principal question involved is the construction of the homestead laws as they existed at the time of the death of John M. Patchett, in 1876. A reference to the codes as they stood at that time discloses a slight inconsistency in wording, but a very vital difference in effect,

“In order to avoid confusion in the history of this legislation it should be said that the foregoing eases involved a similar situation which arose in the amendment of these two code sections by the legislature of 1880, with, however, a reversal of the situation as to time, that is to say, the amendment to the Civil Code section was approved prior to the approval of the amendment to the section of the Code of Civil Procedure, and it was held in those cases that section 1474, Code of Civil Procedure, controlled over the Civil Code section.

[2] “ All parties agree that, in accordance with the former rulings of the Supreme Court, section 1265, Civil Code, as amended in 1874, that being the law which existed at the time of the death of the homesteader, controls the devolution of this particular homestead. That section, after making provision for the disposition of homesteads selected from community property, provided that ‘in other eases, upon the death of the person whose property was selected as a homestead, the property shall go to his heirs or devisees, subject to the power of the probate court to assign the same for a limited period to the family of the decedent. ’ The provisions of section 1474, Code of Civil Procedure, as amended at the same session, were almost identical with the Civil Code section with this important exception — that in the case of a homestead selected by the owner of separate property the section declared that it ‘vests ... in his or her heirs.’ [3] It will be seen, therefore, that the main distinction between the sections as they read at that time was that the Civil Code section carried the homestead selected from separate property over to the heirs or devisees, whereas the

[5] “ It follows from this that if the property is subject to the testamentary disposition of the owner and thus becomes a part of his estate the administrator of his estate is permitted to sue or be sued concerning the property without joining the heirs in such litigation, and that any judgment in which the administrator is a party is equally binding on all the heirs and on- all persons claiming under such administrator. This proposition is conceded by the respond

“Respondents have cited a number of cases holding that the homestead vests absolutely in the survivor or in the heirs, as the case may be, and that it does not become a part of the estate subject' to administration. All these cases, however, involved an interpretation' of a statute which expressly declared that the homestead should, upon death, vest either in the survivor or in the heirs. None of these cases involved an interpretation of section 1265, Civil Code, as it stood between the period of its amendment in 1874 and the amendment in 1880, during which time it was the controlling statute and during which time the statutory law was that in a ease of separate property selected by the owner the homestead should, on the death of its creator, go to his heirs or devisees.

[6] “ Therefore, in the action instituted by Charles H. Patchett, as administrator of the estate of John M. Patchett, to recover the property which was alleged to have been unlawfully seized and held by Martha Patchett and her executor, the issue was raised as to the validity of this will and particularly as to that portion of the will which related to the disposition of this homestead property. Growing out of this issue were the questions whether the will was valid in its attempt to devise the homestead property to the widow for the period of her life only, with the remainder over to certain designated heirs, or whether the will was entirely ineffectual in its attempt to devise any interest in the homestead property. The further issue arose in that particular litigation as to whether the attempt of the testator to give a life esate in the homestead to the widow (assuming the power of testamentary disposition) was ineffectual because of the peculiar wording of the will, from which the defend

“With these issues before them the parties stipulated that the decree should be entered awarding the entire homestead to the defendant therein as the successor in interest of the widow. As consideration for this the defendant therein waived all claim to all the other lands involved in that litigation and these were accordingly awarded to the plaintiff, It may be that if these issues had gone to trial and the court had held that the widow took the entire estate through the right of survivorship, to the exclusion of the other heirs, such holding would have been erroneous. Nevertheless, the issue as to the ownership of the homestead property covered a subject matter over which the trial court had jurisdiction, and, all the necessary parties having been present, the decree of the trial court, even though we may concede it to have been erroneous as a matter of law, was nevertheless a decree executed within the jurisdiction of the court, and is binding upon all the parties thereto. The respondents are in this peculiar position: If they take under the will as a part of the estate they are bound by the judgment; if they ‘succeed as heirs’ they would be entitled to a portion of the estate only as Martha Patchett, the widow, was an ‘heir’ also. Under this theory she would be entitled to her share under section 1386, Civil Code, free from any limitation as to a life estate under the will, and to this share the appellant herein would succeed. Thus the judgment as rendered could not stand under either theory.

“In addition to this the appellant specially pleaded as a separate defense the provisions of section 318, Code of Civil Procedure, which provide that no action for the recovery of real property or of the possession thereof can be maintained unless it appears that the plaintiff, his ancestor, predecessor or grantor was seized or possessed of the property in question within five years before the commencement of the action, and further pleaded that ever since the first day of November, 1909, and until his death, in 1922, Benjamin Bradshaw was in the quiet and peaceful possession' of the land described in the complaint, holding the same adversely to all other parties, and that no claim had been made

[9] “ There is evidence in the record showing without dispute appellant’s entry into possession of the entire tract

[10] “ We cannot escape the conclusion that irrespective of the manner of pleading the issue of adverse possession the trial of the issue was fairly had before the lower court and that the error of the court consists in its adoption of respondents’ theory that because the occupant of the premises subdivided them into lots he thereby lost the right to claim a prescriptive title to the entire tract because of section 322, Code of Civil Procedure. Without a particle of conflict the evidence shows that the respondents and their predecessors, for a period of forty-six years, at least, had not been in possession of the premises, while during that whole period the appellant and his predecessor had been in actual and peaceable possession exercising all the acts of ownership which an ordinary person would have done under like circumstances. • For these reasons the respondents were barred by the statute of limitations, mentioned in section 318, Code of Civil Procedure, as pointed out in Beckett v. City of Petaluma, 171 Cal. 309 , 312 [ 153 Pac. 20 ],

“ . . . For these reasons we conclude that the portion of the judgment adverse to the appellant and from which he appeals should be reversed with directions to the trial court to retry the issues relating to the property described in the complaint other than lot 13 of block 1 thereof.” .

Judgment is reversed.

Seawell, J., Richards, J., Shenk, J., Lawlor, J., Curtis, J., and Waste, C. J., concurred.

Rehearing denied.