McCreery v. Duane — 52 Cal. 262

Majority

p. 262

[No. 6187.]

ANDREW B. McCREERY v. CHARLES P. DUANE.

Headnote

Evidence of Title by Adverse Possession.—If, in ejectment, the answer of the defendant is a mere denial of the allegations contained in the complaint, the defendant is not entitled to prove that he has been for five years in the adverse possession of the demanded premises.

Ejectment to recover 50-vara lot No. 6, in block No. 512, in the Western Addition, in San Francisco. The plaintiff recovered judgment, and the defendant appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion.

Charles P. Duane, in pro. per.

Wilson & Wilson and Warren Olney, for the Respondent.

1. The objection to the introduction in evidence of the conveyances running from the City and County of San Francisco to McCreery and others and to Doll, respectively, and the ground of the motion for a nonsuit, are the same appearing in McCreery v. Sawyer, ante, p. 257, just decided, and our views upon these points announced in that case need not be repeated in this case.

2. The defendants offered to prove that they had been in the actual, exclusive, and adverse possession of the demanded premises for five years next before the filing of the complaint herein, and the exclusion of the evidence thus offered is the only supposed error remaining to be considered.

The answer of the defendants was a mere denial of the allegations contained in the complaint.

There was no attempt whatever, even such a one as was made in McCreery v. Sawyer, to plead the Statute of Limitations—nor was any affirmative defense whatever set up in the answer.

In this condition of the pleadings the proof offered by the defendants, even if amounting to anything in itself, was correctly excluded.

Judgment and order affirmed. Remittitur forthwith.