Richardson v. Williamson

24 Cal. 289

• Court: California Supreme Court
• Decided: July 1, 1864
• Status: Published

Opinion

By the Court, Sawyer, J.

This was an action to recover a lot in the Town of Vallejo, brought originally against the defendant, Williamson. Williamson answered, denying the allegations of the complaint. Hanscom filed a petition setting up title in himself, and alleging that Williamson was in possession as his tenant; that he (Hanscom) had been by himself and his tenants in adverse possession of the premises for five years before the commencement of the suit, and asking that he might be allowed to appear as defendant and resist the action. He also denied the allegations of the complaint.

The plaintiff replied, denying the allegations of the petition, and alleging that he held under a title derived from the Mexican Government, and that five years had not elapsed since the final confirmation of said title by the Government of the United States. Both parties claim title under Vallejo, the grantee of the Mexican Government. There was a general verdict for the plaintiff. The jury also answered the following special issues submitted to them in the affirmative, viz:

First—“ Has Williamson, the defendant, had possession of the premises in controversy for five years continuously prior to the commencement of this suit, holding the same adversely to the plaintiif’s grantors ? ”

Second—“ Did the parties plaintiff and defendant acquire title (each of them) from the Mexican Government through M. G. Vallejo, the grantee of the land in controversy ? ”

Judgment was rendered for the plaintiff on the verdict, and the defendants appeal.

Ho evidence having been introduced upon the question as to a confirmation of the Mexican grant under which the parties claim, and there being no special finding on that point, the appellants insist that the special finding of the five years adverse possession in defendants controls the general verdict, and that the defendants were entitled to a judgment. This brings us to the first question discussed in the briefs, viz: upon which party was the burden of proving the fact and date of the final confirmation of the Mexican grant by the Government of the United States ?

Section six of the Statute of Limitations provides that “Ho action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within five years before the commencement of such action; provided, however, that an action may be maintained by a party claiming such real estate, or the possession thereof, under title derived from the Spanish or Mexican Governments, or the authorities thereof, if such action be commenced within five years from the time of the final confirmation of such title by the Government of the United States, or its legally constituted authorities.”

We concur in the views expressed upon the former hearing —that, under this section, the burden was upon the plaintiff to show either that there were proceedings still pending to procure a final confirmation of the title, or that a final confirmation had been had, and that five years had not elapsed since such confirmation. The defendant shows that he has been in the adverse possession of the premises for a period of five years before the commencement of the action. This, under the general provisions of the section, defeats the plaintiff’s prima facie case. It then devolves upon the plaintiff to affirmatively show a state of facts which brings him within the exception mentioned in the proviso. It is not enough to show that he claims under a title derived from the Mexican Q-overnment—that fact alone does not bring him within the proviso; it is also necessary that the suit should be brought within five years after the final confirmation of the title. Both facts must co-dxist to bring the case within the terms of the exception. That it rests upon the plaintiff to allege and prove a claim of title under a Mexican grant, in order to defeat the defense of five years adverse possession, is not controverted. If it is necessary for the plaintiff to allege one of the constituent facts of the exception, viz: that he holds under a Mexican grant, it is also necessary to allege the other fact, which is essential to constitute a case within its provisions; and if it is necessary for him to allege it, the burden of proving the allegation is on him. The fact of confirmation, if it exists, and its date, are affirmative matters, easily susceptible of proof; while to require proof that there was no confirmation would be to require the defendant to prove a negative.

The plaintiff, in his replication, alleged his Mexican grant, and that five years had not elapsed since its final confirmation. He evidently supposed it necessary to do so to avoid the Statute of limitations set up by Hanscom. In this supposition he was clearly right. If it was necessary for him to allege those matters, it was, of course, necessary to prove them. We think it clear that the burden of proof on this point rested on the plaintiff.

The next question is, as to whether the five years adverse possession of the defendants is a bar to the plaintiff’s action ?

It is admitted by respondent’s counsel that the grounds relied on by appellants would have great force if section six, above quoted, contained the only provision of the statute bearing upon the rights of parties holding lands under titles derived from the Mexican Government. But it is very ingeniously argued, that, in adopting this section, the Legislature had in contemplation only one class of Spanish or Mexican titles— those imperfect titles upon which the holders could not maintain an action at all until after final confirmation—that there is another, superior class of Spanish or Mexican titles, upon which actions might be maintained (though- experience had shown with extreme difficulty) without confirmation; and that section seven was intended to provide for this class of cases, and the provision is—according to the argument—that this class of cases is not subject to the Statute of Limitations at all; that they are entirely excepted out of and withdrawn from the operation of its provisions. The argument is mainly based upon the use of the word “ or,” in the clause “ unless it appear that the title to such premises was derived from the Spanish or Mexican Governments, or that the same was confirmed by the Government of the United States, or its authorities, within five years before the commencement of such action.” We are unable to subscribe to this view. Had the Legislature intended such a result, it would have been easy to make the exception in clear and unambiguous terms. It is impossible to reconcile such a construction with the obvious policy and object of the law, as derived from the other provisions of the Act. The word “ and” would doubtless have better expressed the idea intended; but the word “or” is often used conjunctively, as well as disjunctively, and we have no doubt it was so intended to be used in this instance. The construction contended for would render this section repugnant to the other provisions of the Act, and especially to section six, which is the controlling section in respect to actions for the recovery of real estate.

But, in our opinion, section six is the only section applicable to this action. Before the amendment in 1855 it read as follows:

“No action for the recovery of real property or for the recovery of the possession thereof shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within five years before the commencement of such action.”

This is broad in its terms, and covers every case for the recovery of the possession of land. There is no room for misconstruction. It was found in practice that it was expensive and difficult to prove up a Spanish or Mexican title in such a manner as to maintain an action upon it against intruders.

Under the laws of the United States, most of the claims under Spanish and Mexican grants had been presented to the Board of Land Commissioners for confirmation prior to 1855, and the statute of the'Rational Government contemplated that all should be presented to that tribunal for adjudication within a prescribed time, or that, in default thereof, the lands should be deemed to be public lands. When the five years under the Statute of Limitations was about to expire—the time limited by the law of Congress for presenting claims for confirmation having already elapsed—it was found that great hardship would result to claimants under Mexican titles unless some change should be made in this provision of the Act under consideration. It was accordingly amended in 1855 by adding to section six these words:

“Provided, however, that an action may be maintained by a party claiming such real estate or the possession thereof under title derived from the Spanish or Mexican Governments, or the authorities thereof, if such action be commenced within five years from the time of the final confirmation of such title by the Government of the United States or its legally constituted authorities.”

There was no change made in the language of the section as it originally stood; it was as broad as ever in its terms; but the foregoing clause was added, and this proviso pointed out the exceptions—and the only exceptions—intended to be engrafted upon this provision of the Act. The language of the proviso clearly covers every case of a title derived from the Spanish or Mexican Governments then existing in contemplation of law. There is no room for supposing that any class of cases was omitted to be provided for in some other section.

It is undoubtedly true that the profession have been not a little puzzled to give a proper construction to section seven— especially since the amendment in 1855. Its provisions have been frequently discussed in the District Courts in actions to recover lands, but we are not aware that this section has been construed by the Supreme Court. To whatever cases it may be supposed to apply, we are clear that its provisions were never-intended to be applicable to an action for the recovery of real estate. There was no necessity for the provision of this section as applicable to an action to recover the possession of land. Section six provides fully for such cases. It is not to be supposed that the law-making power intended to repeat the provisions of the' preceding section. Some other action depending upon the title to realty must have been contemplated.

To understand this section, it will not only be necessary to consider the terms of the section as it stood before the amendmendment of 1855, but also to trace it back to the statute from which it was borrowed, and consider the condition of things under which it was originally enacted.

Our Statute of Limitations is based upon the statute of New York; in fact, most of the sections are copied verbatim, with the exception of shortening the time. Section six, before the amendment of 1855, was a literal copy of section five of the statute of New York, except the New York statute has “ lands, tenements, or hereditaments,” in the place of the words “ real property,” in our Act. Section seven of the Statute of California corresponds to section six of the New York Act. The following is the section. When the two Acts differ, the language of the Act of New York is inclosed in parentheses, for which the words in brackets are substituted in the California Act:

“ [No cause of action or defense to an action founded upon the title to real property] (No avowry or cognizance of title to real estate) or to (any rents or services) [rents or to services out of the same] shall be [effectual] (valid) unless it appear that the person [prosecuting the action or making the defense] (making the avowry,) [or under whose title the action is prosecuted or the defense is made] (or the person in whose right the cognizance is made,) or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question within [five] (twenty) years before the [commencement of] (committing) the act, in [respect to which such action is prosecuted or defense] (of which such avowry or cognizance is) made.” (2 Rev. St. N. Y. 293; Stats. Cal. 1850, p. 344, Sec. 7.)

It will be seen that the only change in the language is in substituting for the words “ Eo avowry or cognizance of title to real estate,” the words “ Eo cause of action, or defense to an action, founded upon the title to real property,” and such other changes as were necessary to make the remainder of the section correspond to this change in the phraseology. The terms “avowry” and “cognizance” had a well known signification, which had reference to proceedings growing out of taking property by distress. At the time this Statute of Limitations was enacted in Eew York, a landlord was authorized to distrain for rent; and there, also, as in England, the owner of land was authorized to distrain, when the cattle of another were found in his grounds, damage feasant. (2 Rev. Stat. N. Y. 517; 3 Black. Com. 7.)

When property was distrained, the remedy by the owner of the property taken was an action of replevin. “ Upon this action being brought, the distrainor, who is now the defendant, makes avowry; that is, he avows taking the distress in his own right, or the right of his wife, and sets forth the reason of it, as for rent arrears, damage done, or other cause; or else, if he justifies in another’s right, as his bailiff, or servant, he is said to make cognizance; that is, he acknowledges the taking, but insists that such taking was legal, as he acted by the command of one who had a right to distrain; and on the truth and legal merits of this avowry, or cognizance, the case is determined.” (2 Black. Com. 149.)

In this way, it will be seen there would arise an “ avowry, or cognizance of title to real estateand such cases are precisely the cases provided for in this section of the statutes of Hew York.

The first Legislature of this State—as some other States had done before—finding a well digested Statute of Limitations, with its meaning already Settled by construction, adopted it almost bodily, as will be seen by comparing the different sections of the two Acts. But the Legislature did not see fit to adopt the practice of distraining for rent, damage done by cattle, etc., and when they came to consider section seven, they found the terms used in the Hew York statute inapplicable to the condition of things in California. But the action for rent, damage done by cattle, and perhaps other personal actions, dependent upon title to real estate, remained; and it doubtless occurred to them that the terms “ avowry- and cognizance” might be dropped and other words substituted, and the provisions of this section be thus adapted to such cases and made applicable to the prosecution made necessary by the non-adoption of the law relating to distress, as well as to the defense, and hence the retention of the section thus modified. Such may reasonably be supposed to have been the case. Whether or not these are the precise cases or the only cases intended to be provided for, or whether or not the section is of any practical utility under the condition of the law in California relating to such cases, it is not. necessary now to determine. But this brief review of the origin and history of this section will serve to throw some light upon its construction, and whatever other cases may or may not be embraced within the scope of its provisions, we think it clearly shows that the section, as it stood in the Act of 1850, was not designed to cover the same cases provided for in the preceding section. It must have been intended for some other purpose. Granting this view to be correct, it follows that the amendment of 1855 (which was only an addition, in the nature of an exception, to the section as it before stood) must have referred to the classes of cases already provided for it that section—that is to say, personal actions founded upon the title to real property, and not to actions for the recovery of such property.

It may be well to remark, in passing, that the substitution in our Act of the word “ effectual” for the word “valid” does not appear to be very happy, as “effectual” does not seem to be the precise word to use in connection with the phrase “cause of actionand the substitution of the words “commencement of” for the word “ committing” is still more infelicitous.

The object of the change is not very apparent, and the tendency of the use of the words “ commencement of the Act” in the place of the words “ committing the Act” is to obscure the sense rather than to make it clear. Possibly the change may have originated in a clerical error.

The judgment must be reversed on the points already discussed. But there is another question made in the case and argued by counsel—one that has also been frequently raised in the District Courts. The question will doubtless arise again on the new trial in the Court below, and for that reason it is better that it should be decided now.

It was stipulated by the parties, and found as a fact by the jury, that both parties claim title under the same Mexican grant, through Vallejo. It is insisted that, because both parties claim under Vallejo, and the Mexican title was not in question—the action was necessarily founded on the conveyance from Vallejo only, and not upon a Spanish title, and that the proviso contained in section six is, therefore, inapplicable to the case.

But the plaintiff does, nevertheless, claim under a title derived from the Mexican Government. It is so stipulated and found. He comes clearly within the language of the law: “Provided, however, that an action may be maintained by a party claiming such real estate or the possession thereof under title derived from the Spanish or Mexican Governments, or the authorities thereof, if such action be commenced within five years from the time of the final confirmation of such title,” etc., etc. This language is clear and unmistakable. There is no exception in favor of cases in which the defendant claims under the same grant, and does not contest the validity of the Spanish or Mexican title. The exemption from the bar stated in the first clause of the section is made to depend upon the fact of “ claiming such real estate” under a Spanish or Mexican title, and not upon the question as to whether the defendant upon the trial shall put him to the trouble of tracing his title back to its source. It is doubtless true that the policy of the law was founded upon the extreme difficulty and great expense of proving up a Spanish title before final confirmation. And it may be that, in a particular instance arising in practice, the reason upon which the law was founded may not operate with full force; but the law deals in generalities, and cannot provide for every case that may arise. In this instance it has provided for- a whole class of cases, and the distinguishing characteristic of the class is that the land is claimed under a certain kind of title. In this case the complaint alleges a title in fee simple in the ordinary general terms. The answer denies every allegation. It also sets up the Statute of Limitations in avoidance. The plaintiff replies, that he claims under a Mexican grant, and that five yéars have not elapsed since the final confirmation, and these are the issues presented by the pleadings. They certainly present a case within the proviso. The pleadings put the plaintiff upon proving his Spanish title. The defendant is in possession, and the plaintiff must show a title of some kind to enable him to recover. The defendant has denied generally the allegations of the complaint. He may fold his arms, and quietly rest until the plaintiff shows his title. Would any lawyer say that the plaintiff could safely rest by showing a title from Vallejo without going beyond him ? He might possibly be able to show a possession in Vallejo, and thus make out a prima facie case; but then, again, he might not. But admitting that he could, would it be prudent for a plaintiff* holding under a Mexican grant to risk a nonsuit by resting without connecting himself with his ultimate source of title ? But it is said in this case there was a stipulation that both parties claimed under a Mexican grant. True, upon the trial this stipulation was made, and it obviated the necessity of proving what otherwise would have been necessary under the pleadings. But how can the plaintiff know in advance what stipulation the defendant may be willing to make, or upon what title he may base his defense ? In every instance the defendant may, by denying the allegation of the complaint, put the plaintiff to the trouble of tracing his title to its source, and if he fails in this, subject him to the risk of a nonsuit before disclosing at all the title upon which he rests his defense.

A party holding lands under a Spanish grant, knowing that a defendant could, and reasonably presuming that he would, put him to the proof of his Spanish title, might well be deterred by the well-known obstacles of litigating an uncomfirmed title, from bringing suit until the title under which he claimed should be finally confirmed, and in such case the construction sought to be put upon this provision of the Act might be the means of defeating the acknowledged policy of the law. Under such a construction, a party, while waiting for the final confirmation of the title under which he claims, relying upon the proviso of section six, might defer bringing suit against the occupants of his land for a period of five years, and then, when his action is barred, learn, for the first time, that the occupants set up some shadowy claim under the same title, but sufficient to give them color, and set the statute in motion and cut off his right of action. The Legislature did not contemplate that claimants under Spanish grants should be subjected to such risks. Such a law would prove a snare rather than a protection.

' If we follow the obvious import of the language of the statute, and give it the construction that the great mass of men would naturally put upon it, we shall have a simple, plain, and unchangeable rule of action, easily understood, and not liable to mislead.

But if, upon an argument, however ingenious and able, drawn from the supposed policy of the law, we attempt to engraft upon this provision an exception not clearly imported by the language of the Act itself, we shall have a rule difficult of application, and one that is liable in practice to lead to injustice and inextricable confusion.

In our opinion, then, the exemption specified in the proviso under consideration does not relate to cases merely in which the validity of the Spanish or Mexican title is the question to be litigated and determined, but that it extends to all cases in which the plaintiff claims land under such a title; that it applies to all cases in which the plaintiff is liable to be called upon to connect himself with the Spanish or Mexican Grovemment as the source of his title,' and does not depend upon the contingency as to whether or not the defendant does in fact call upon him to establish by proof a Spanish or Mexican title.

The plaintiff’s right, under the statute, to maintain his action, depends upon the condition and character of his ultimate title, and not upon the volition of the defendant.

This case presents important questions not before decided by tins Court. There are some technical difficulties on the face of the record in the way of rendering judgment for the defendants, if it were otherwise proper. But, independent of these considerations, we think the ends of justice, under the circumstances of this case, require that a new trial should be had. As the case goes back for a new trial, we will add the suggestion, that there is no finding of the fact that Williamson was the tenant of Hanscom—an important fact, as the pleadings stand, for the reason that Williamson did not set up the Statute of Limitations—and the findings of the jury only state that Williamson had been in adverse possession for five years. It is averred in the statement, however, that “ defendants introduced evidence tending to show that defendant, Williamson, was, and that he had been for more than five years, a tenant of Hanscom.” And no testimony to the contrary appears in the statement. It is also stated that “ it was ■admitted by the parties hereto that defendants have been in possession for five years prior to the commencement of this suit.” The jury, then, would necessarily have found these facts in the special verdict had the question been submitted to them. It is not found, however, and the general verdict is for plaintiff. The general verdict is, therefore, contrary to the evidence and stipulated facts on this point, and the special verdict fails to find one of the facts essential to control the general verdict. The argument of the case seems to have been on the hypothesis that Williamson was Hanscom’s tenant.

The fact of a final confirmation of the grant is not distinctly alleged in the replication. It can only be inferred from the allegation that “five years had not elapsed since the final confirmation,” etc. It would be better in such cases to allege directly either that the claim has been presented for confirmation, and the proceeding is still pending, or that the claim has been finally confirmed, stating the date of the confirmation.

We allude to these points so that the parties may, upon the next trial, avoid any occasion for taking an appeal upon technical grounds.

The judgment is reversed and a new trial ordered, with leave to either party to amend his pleading as- he may be advised.

Mr. Justice Currey, having been of counsel, did not sit in this case.