Huling v. Seccombe

-This is an appeal from a decree quieting title to a certain lot situated in Long Beach, California. Appellant contends that the findings and judgment are not supported by the evidence.

Much of the evidence was stipulated. The respective parties claim title through a common ancestor. The in question is an unimproved vacant lot in a suburb of Long Beach, which has never been used, inclosed, or cultivated. It was without buildings, fences, or street improvements. The only evidence tending to show adverse possession on the part of respondent or his predecessor in title was the payment of taxes for the required length of time and the possible clearing away of weeds from the lot on one occasion. February 2, 1905, William Clague was the owner of the lot. On March 30, 1908, he executed and delivered to Emma D. Davis his promissory note for $2,700 secured by mortgage on said premises. April 14, 1910, for a valuable consideration Clague executed and delivered his deed of conveyance of said lot to John H. Warner. June 17, 1910, Warner deeded it to Henry Freedman. On the last-named date foreclosure proceedings upon said mortgage were commenced by Emma D. Davis against Clague, Freedman, and others. Subsequently the action was dismissed as to Freedman. Upon proceedings duly had a decree of was entered August 10, 1910, and a month later the sheriff sold the property to the mortgagee, Davis, under the decree of foreclosure. Fourteen days later Freedman executed a deed of conveyance of this property to one Foreman, who, in turn, quitclaimed the tract to June 11, 1911, Clague formally redeemed the and subsequently conveyed it to the father of respondent Edward E. Huling, who claims title through a decree of distribution duly made in his father’s estate. This action to quiet title.was then instituted November 21, 1923.

It thus appears that the record title- was in appellants. Having formally conveyed the premises to Warner by

A judgment debtor has the right to redeem land from a mortgage foreclosure notwithstanding the fact that he previously transferred his title to another. (Code Civ. Proc., see. 701; Yoakum v. Bower, 51 Cal. 539 ; Bateman v. Kellogg, 59 Cal. App. 464 , 479 [ 211 Pac. 46 ].) The effect of redemption, however, is to satisfy the mortgage debt and discharge the lien. Where redemption from foreclosure sale is accomplished by the mortgagor himself, it cancels the mortgage sale. (2 Jones on Mortgages, 7th ed., 642, sec. 1051 d.) The redemption of property by a mortgagor after a foreclosure sale, adds nothing to his title, but the inures to the benefit of his former grantee. (Civ. Code, sec. 1106; 2 Jones on Mortgages, 7th ed., 644, sec. 1051 d; Witham v. Blood, 124 Iowa, 695 [ 100 N. W. 558 ].) In Bateman v. Kellogg, supra, it is said: “When Woodruff redeemed the property, the foreclosure sale to Stickney' was terminated (Code Civ. Proc., see. 703), thereby leaving the legal title to the land the same as if no mortgage had been given. Therefore his redemption could not have the effect, either in law or in equity, of transferring appellant’s title to him.” It necessarily follows that whatever benefits were acquired by Clague by virtue of his redemption of the premises inured to the benefit of his former grantee Warner, and thence to his grantees, and hence Clague had no title to convey to Huling, and respondent is therefore not the owner of the record title.

Nor did the record owners forfeit their title by failure to institute proceedings to cancel the deed from Clague to Huling. “There are no equities in favor of a party seeking by adverse holding to acquire the property of another. Hence the rules, that user measures the extent of a prescriptive right, and every statutory requirement of the acquisition of lands by adverse possession must be fulfilled.” (1 Cal. Jur. 492, sec. 3.) In the case of Secret Valley Land Co. v. Perry, 187 Cal. 420 [ 202 Pac. 449 ], which was an action to quiet title, Mr. Justice Sloane approvingly quoted the following language: “Both parties are claiming under a record title from a common source, and the only question is superiority. Limitation or lapse

The record in the instant case is insufficient to sustain a finding of adverse possession in respondent. The evidence is undisputed to the effect that the lot in question was vacant during ten years prior to the commencement of this action, and was unoccupied, uninclosed, uncultivated, and unused. It contained no betterments and had no sidewalks or street improvements whatever. During the winter it was usually flooded with water, and in summer-time it was overrun with weeds. The only evidence tending to show adverse possession consisted of the payment of taxes by respondent. He testified that once he offered it for sale, but he does not state when, to whom, or how he offered it for sale. He also claims to have once cut the weeds from the place, but the evidence as to this circumstance is unsatisfactory. In this regard respondent testified: “Ihaven’t been to that property for ten months, maybe more. Q. What acts of ownership, or control have you seen your father perform? A. Once I went there with him myself and helped clean the weeds off the property; I can’t tell you what year that was. ... So far as I know, he (my father) never offered it for sale. . . . Once since that time, I had the weeds cleaned off. ... I offered to sell it about four

This is an. insufficient showing upon which to rest a claim of adverse possession. The mere occasional cutting of wild grass or weeds will not suffice to base a claim of adverse possession. (2 O. J. 67, secs. 24-26.)

Having failed to establish a legal title to the lot in ques- • tion, there is no presumption in favor of respondent’s possession of the premises, and even though he actually occupied the property, it would be deemed to be in subordination to the legal title held by another, and the burden would be upon respondent to affirmatively establish all the necessary elements constituting adverse possession. (Code Civ. Proc., sec. 321.) But the evidence is undisputed that the premises were not in fact actually occupied by any person whomsoever. Nor can the property be deemed to have been possessed or occupied pursuant to the provisions of section 323 of the Code of Civil Procedure, for it was not cultivated or improved; it was not fenced or inclosed; it was not used to supply fuel, or fencing timber, or pasturage, or for any use whatever. The record in this case is devoid of evidence of any acts on the part of respondent to indicate a claim of adverse possession, with the exception of the payment of taxes for the required length of time. Adverse possession must be based upon either actual or constructive notice to the legal owner. Even though the possession relied upon is constructive, it must nevertheless be “open, notorious, exclusive, visible and not consistent with the record

The findings of fact are in irreconcilable conflict. The first finding of fact is “that all the material allegations of the plaintiff’s complaint herein are true.” The second finding of fact is “that all the material allegations of the defendant’s answer herein are not true.” This is a negative pregnant, and leaves the inference that all of the material allegations of the defendants’ answer are true, except perchance one of them. The third finding of fact is “that the plaintiff is the owner in fee” of the real property described. While the fourth finding of fact is “that the plaintiff’s claim of title ... to said real property is unfounded and without right.” Where findings are irreconcilably in conflict the judgment must be reversed, for the reason that it is impossible, under such circumstances, to determine which findings controlled the court in rendering its judgment. (Los Angeles Land Co. v. Marr, 187 Cal. 126 [ 200 Pac. 1051 ]; Estep v. Armstrong, 91 Cal. 659 [ 27 Pac. 1091 ]; Learned v. Castle, 87 Cal. 454 [ 18 Pac. 872 , 21 Pac. 11 ]; 2 Cal. Jur. 1030, sec. 612.)

The appeal was perfected in this case pursuant to section 953a of the Code of Civil Procedure. Respondent claims that the judgment should be affirmed because the transcript of proceedings which is certified by the trial judge does not contain a copy of notice to the clerk to prepare the proceedings pursuant to said section. This notice, in the language required by that section, however, was duly served and filed with the clerk within the time prescribed by law, and is properly certified by the clerk as a part of the record on appeal. This procedure complies with the statute. Section 953a, supra, provides that this method of presenting the proceedings on appeal is “in lieu of preparing and settling a bill of exceptions.” Under our statute a notice of appeal was never required to be included

The judgment is therefore reversed.

Finch, P. J., and Hart, J., concurred.