Packard v. Johnson

Headnote

Ottsteb or Tenant in Common.—In ejectment brought by a tenant in common against his co-tenant, if the defendant, in his answer, sets up title in himself, it is evidence of an ouster sufficient to enable the plaintiff to maintain the action, so far as the pleadings are concerned.

Recobding Conveyances.—If the owner makes a written sale of land before the docketing of a judgment recovered against him,'and after the judgment is docketed executes to the purchaser and acknowledges a conveyance whicli is recorded before a sheriff’s deed made under the judgment is recorded, the purchaser’s title will prevail over the title acquired under the sheriff’s sale.

Limitation or Action as against Tenant in Common.—If a tenant in common, who is in the possession of the entire tract, sells the whole tract, and the purchaser, with notice of the co-tenancy, enters into possession, he must, in order to acquire the title of the co-tenant by the statute of

limitations, pi-ove an actual ouster the same as his grantor would have been required to do had he remained in possession.

Ouster by Tenant in Common.—-The exclusive occupation of the whole tract, and cultivation of the same, and payment of taxes, by. a tenant in common, are not of themselves sufficient to constitute an ouster of the co-tenant.

Appeal from the District Court, Fifth Judicial District, County of San Joaquin.

Ejectment to recover an undivided one-half of a tract of land, sold by the State to William K. Melville, as swamp land. Melville paid for the land and received a certificate of purchase on the thirtieth day of August, 1858. In February, 1859, Melville entered into a contract in writing by which he sold to one Ward his interest in the land acquired by the certificate of purchase. Ward took possession, but the contract was not acknowledged or recorded. On the twenty-sixth of April following, Melville, for a valuable consideration, executed, acknowledged, and delivered to Ward an assignment of the certificate of purchase, and authorized Ward to receive a patent for the land. On the fifteenth day of November, 1859, Ward sold and assigned to A. J. Sanor and the plaintiff, the certificate of purchase and land, and acknowledged the same so as to entitle it to record, and, on the same day, the certificate and both assignments were recorded. On the twenty-fifth of March, 1859, W. E. Cocke recovered a judgment in the District Court of said county against Melville, for $1072.26, which was docketed on the same day. On the twenty-second day of June, 1859, the sheriff sold the land under the judgment; Cocke became the purchaser, and on the seventh day of January, 1860, received a sheriff’s deed, which was recorded the same day. On'the twenty-fourth day of September, 1860, Cocke sold and conveyed to Sanor the entire tract of land, and Sanor, on the third day of December, 1864, conveyed the same to defendant Johnson. Sanor, for four years before his sale to Johnson, had been in the sole occupation of the premises, and at the time he sold had a substantial inclosure around the same. Johnson, from the time of his purchase, remained in such possession as is explained in

the opinion. The suit was commenced in October, 1874. The defendant, in his answer, set up title in himself to the whole of the demanded premises, and pleaded the statute of limitations. The court rendered judgment for the defendant, and the plaintiff appealed.