79 Cal. 140
21 P. 527
HENRY T. GAGE et al., Appellants,
v.
JOHN G. DOWNEY et al., Respondents
No. 12377
Supreme Court of California
June 5, 1889
79 Cal. 140 at 158.
Original Opinion of May 6, 1889, Reported at 79 Cal. 140.
JUDGES: Beatty, C. J.
OPINION
BEATTY, Judge
A petition for a rehearing having been filed, the following opinion was rendered thereon on the 5th of June, 1889:
The rehearing is denied.
The sentence "all the land set apart as a homestead to Warner and wife, with other land, is included in the patent to Warner," is stricken from the opinion.
As to the defense of the statute of limitations, which, it is claimed, is found in favor of defendants, in our opinion no adverse possession is found by the court in the finding referred to. The case in this respect is similar to Packard v. Johnson , 57 Cal. 182, where it was held that adverse possession was not found, the court remarking as to the finding that "while the facts found tended to prove adverse possession, yet the facts did not necessarily constitute adverse possession."
It will be observed that the action was commenced against all the defendants, except the Merchants' Exchange Bank of San Francisco, within five years after the patent was issued, and so was in time. The statute of limitations did not then run against such defendants. As to the bank, as stated above, there is no finding of adverse possession by it.