Winterburn v. Chambers

27 P. 658, 91 Cal. 170, 1891 Cal. LEXIS 1068
CourtCalifornia Supreme Court
DecidedSeptember 14, 1891
DocketNo. 13405
StatusPublished
Cited by37 cases

This text of 27 P. 658 (Winterburn v. Chambers) 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
Winterburn v. Chambers, 27 P. 658, 91 Cal. 170, 1891 Cal. LEXIS 1068 (Cal. 1891).

Opinion

Harrison, J.

The plaintiffs seek, in this action, partition of a tract of land which belonged to their mother, of which they allege that the defendants are tenants in common with them by reason of conveyances from other heirs of their mother. The land in controversy belonged to Josefa Soto de Stokes, who died intestate September 18, 1855, leaving a husband, James Stokes, and fourteen children surviving her. An act of the legislature was passed March 25, 1857, authorizing her administrator to sell her real estate subject to the approval of the probate court of Monterey County, in which the administration of her estate was pending, and upon such approval to convey the same to the purchaser. March 16, 1858, “ said James Stokes, professing to act under the authority of the said act, and as the administrator of said Josefa, made and entered into a contract with one R. J. Walsh, by the terms whereof he, as administrator of the estate of said Josefa Soto de Stokes, contracted to sell to said Walsh, and said Walsh contracted to buy,” the tract of land described in the complaint, subject to the approval of said probate court. Upon receiving the report of said sale said probate court approved the same, “ and after such approval,.and on the 21st of April, 1858, the said Stokes, still representing himself to be, and professing to act and acting as, administrator of the estate of his said deceased wife, and in his own right, made, executed, and delivered to said R. J. Walsh a deed of conveyance purporting to convey to him the said land in consideration of the sum of $14,376.43.” The said purchase price was the full value of the land at the time of the said sale, and the deed therefor was recorded in the office of the county recorder for Colusa County on the twelfth day of August, 1858. At certain dates thereafter, viz., March 31, 1860, and June 11, 1863, Walsh took deeds purporting to convey the land from persons who had received conveyances [176]*176from, other heirs of Josefa, which were also recorded in said county recorder’s office. Walsh, upon receiving the deed from the administrator, immediately entered into and took possession of the said land thereunder, and on the thirteenth day of August, 1858, sold the northerly half thereof to J. W. McIntosh, at the same price per acre at which he had purchased the same, and received from him a portion of the purchase-money, and l?y a written contract agreed to convey the same to him upon the payment of the balance of the purchase-money, and at the same time delivered to him the possession of the said northerly half. No conveyance of the land was made to McIntosh until October 23,1867, after the death of Walsh, when his executors, under the order of the probate court, conveyed this northerly half to him; but the court finds that “ immediately upon his purchase from R. J. Walsh the said J. W. McIntosh entered into and took possession of the northerly half of the said tract of land, and during the years 1858 and 1859 inclosed all of said half, except about 150 acres in a triangular shape on the westerly or back side, with a good, substantial fence, and thereafter continuously up to the twenty-third day of September, 1868, kept the same so inclosed, and used the same for cultivation and pastor* age, and paid all taxes and assessments levied thereon”; and also finds that such possession of said northerly tract was thereafter maintained by the defendant Lewis H. McIntosh, to whom John had sold and conveyed the same, September 23, 1868.

Walsh died testate April 30, 1866, and thereafter, viz., March 12, 1872, the probate court of Colusa County, in which administration of his estate was had, distributed the southerly half of said land to the defendants Joseph L. Chambers and Charles R. Chambers, in accordance with the provisions of his will.

The court also finds that “ during the year 1858 said Walsh inclosed the southerly half of the said land with a good, substantial post and plank fence; and thereafter, up to the time of his death, maintained and kept the [177]*177same so inclosed, and kept and held the open, notorious, actual, and exclusive possession of all the said southerly^ half of said land, adversely to all the world, and used the same for cultivation and pasturage, and paid all taxes and assessments levied thereon, and dealt with and used the same as his own property”; and also that after the death of Walsh his executors kept and maintained a similar possession until the entry of the decree of distribution in his estate, and that thereafter such possesession was kept and maintained by the defendants Chambers. The court further finds, —

“32. The said E. J. Walsh entered into and took possession of the land purporting to be conveyed to him by the said deed of April 21, 1858, in his own right, and as owner of the entire estate, and not as a tenant in common with the plaintiffs, or any or either of them, or with any other person, and ousted and amoved the plaintiffs, Josephine Winterburn, Lucy Mills, Catherine Sherwood, Louisa Johnson, William Stokes, and Domingo Stokes, and all other persons having or claiming any right, title, or interest in or to such tract of land, or any part thereof, from the possession of said land and every part thereof.

“33. More than five years, to wit, more than six years, elapsed between the time when the youngest of the plaintiffs arrived at majority and the time of the commencement of this action, during all which time the defendants Joseph L. Chambers and Charles E. Chambers had and held, and claimed to hold in their own right absolutely, as the devisees of the said E. J. Walsh, deceased, and under the said decree of distribution made by the probate court of the county of Colusa, all the southerly half of the said land, and were, at the time of the commencement of this action, the owners, in fee, thereof; and all which time the defendant Lewis H. McIntosh had and held, and claimed to hold absolutely in his own right as the grantee of said Walsh, and under mesne conveyances sufficient in form to convey the whole title, all the northerly half of the said land, and [178]*178he was, at the time of the commencement of this action, tthe owner, in fee, of the said northerly half.”

The present action was commenced on the twentieth day of May, 1878, and at the time of its commencement the plaintiffs were of the following ages: Louisa Johnson, forty-seven years; Catherine Sherwood, thirty-four years; Josephine Winterburn, thirty-one years; Lucy Mills, tweuty-eight years; William Stokes, thirty-two years; and Domingo Stokes, through whom the plaintiff Eugene Sherwood claims, thirty-eight years.

As conclusions of law, the court found that by virtue of such ouster and adverse possession the title of the plaintiffs was extinguished and their right of action barred by the statute of limitations. It also found the following as one of its conclusions of law, viz.: “That the said E. J.

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Cite This Page — Counsel Stack

Bluebook (online)
27 P. 658, 91 Cal. 170, 1891 Cal. LEXIS 1068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winterburn-v-chambers-cal-1891.