Taylor v. Woodward

California Supreme Court

Taylor v. Woodward

10 Cal. 90, 1858 Cal. LEXIS 194

CourtCalifornia Supreme Court

DecidedJuly 1, 1858

StatusPublished

Cited by2 cases

This text of 10 Cal. 90 (Taylor v. Woodward) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Taylor v. Woodward, 10 Cal. 90, 1858 Cal. LEXIS 194 (Cal. 1858).

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Opinion

Burnett, J., after stating the facts, delivered the opinion of the Court

Terry, C. J., and Field, J., concurring.

The first and most material point in the case is, whether Mrs Taylor can be considered as the owner of the premises in dispute as against the defendant. The 160-acre tract was not reduced to actual possession in the lifetime of the deceased, McDowell, except the small portion occupied by the house and garden.

There is no evidence in the record to show that the deceased, McDowell, claimed any portion of the premises in controversy. The possession of McDowell was limited to the house and garden, and did not include the lots described in the complaint.

By the provisions of the first section of the act of April 11, 1850, any person settled upon any of the unoccupied public lands of the United States, (except lands containing mines of the precious metals,) was authorized to maintain any action to protect his possession. The claim could not exceed the quantity of 160 acres, and the lines were required to be marked out so that they [92]*92could be readily traced. In this case the lines were properly designated. It does not matter that any were marked out before the passage of the act, any more than it does that the possession was anterior to its passage. The act was repealed in 1852; but the right of Mrs. Taylor accrued, and the trespass of the defendant occurred before the repeal. The right of action was, therefore, complete; and the repeal of the act of 1850 did not divest this right.

But it is urged, by the learned counsel for defendant, that plaintiffs are estopped from setting up any right to the possession of the premises in controversy, for the reason that Mrs. Taylor, during her widowhood, had consented to the administration of defendant upon the 160-acre tract as the property of the estate. Conceding that this consent was sufficiently shown by the testimony, it could not operate as an estoppel in favor of the defendant, as to the lots occupied by him before ho became administrator. As to whether the plaintiffs would be estopped, as against purchasers under the orders of the Probate Court, it is not necessary to determine in this case. The defendant is not injured by this alleged consent, as he did not act upon it in taking possession of the premises. His possession was wrongful in the beginning, and its character has not been changed by any act of Mrs. Taylor.

Judgment affirmed.

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Burnett, J., after stating the facts, delivered the opinion of the Court

Terry, C. J., and Field, J., concurring.

The first and most material point in the case is, whether Mrs Taylor can be considered as the owner of the premises in dispute as against the defendant. The 160-acre tract was not reduced to actual possession in the lifetime of the deceased, McDowell, except the small portion occupied by the house and garden.

There is no evidence in the record to show that the deceased, McDowell, claimed any portion of the premises in controversy. The possession of McDowell was limited to the house and garden, and did not include the lots described in the complaint.

By the provisions of the first section of the act of April 11, 1850, any person settled upon any of the unoccupied public lands of the United States, (except lands containing mines of the precious metals,) was authorized to maintain any action to protect his possession. The claim could not exceed the quantity of 160 acres, and the lines were required to be marked out so that they [92]*92could be readily traced. In this case the lines were properly designated. It does not matter that any were marked out before the passage of the act, any more than it does that the possession was anterior to its passage. The act was repealed in 1852; but the right of Mrs. Taylor accrued, and the trespass of the defendant occurred before the repeal. The right of action was, therefore, complete; and the repeal of the act of 1850 did not divest this right.

But it is urged, by the learned counsel for defendant, that plaintiffs are estopped from setting up any right to the possession of the premises in controversy, for the reason that Mrs. Taylor, during her widowhood, had consented to the administration of defendant upon the 160-acre tract as the property of the estate. Conceding that this consent was sufficiently shown by the testimony, it could not operate as an estoppel in favor of the defendant, as to the lots occupied by him before ho became administrator. As to whether the plaintiffs would be estopped, as against purchasers under the orders of the Probate Court, it is not necessary to determine in this case. The defendant is not injured by this alleged consent, as he did not act upon it in taking possession of the premises. His possession was wrongful in the beginning, and its character has not been changed by any act of Mrs. Taylor.

Judgment affirmed.

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