Possession is always prima facie evidence of title, and proof of prior possession is enough to maintain ejectment. (Hutchison v. Perley , 4 Cal. 33; Winans v. Christy, Id. 70; Plume v. Seward, Id. 94; Norris v. Russell , 5 Cal. 249; Hicks v. Davis , 4 Cal. 67.)
To constitute an abandonment, there must be a voluntary relinquishment of the possession, coupled with acts or declarations unequivocally indicating an intention not to return and resume the possession. (Miller v. Cresson, 5 Watts and S. 284.)
The law will not presume an abandonment from lapse of time merely, unless it be for so long a time as to bar an action for recovery of possession. (Williams v. Nelson, 24 Pick. 141; Brenthingen v. Hutchinson, 1 Watts, 46.)
JUDGES: Burnett, J., after stating the facts, delivered the opinion of the Court. Field, J., concurring.
OPINION
BURNETT, Judge.
There is nothing in the position that plaintiff had abandoned his interest in the property in dispute. The law could not presume such an abandonment from the lapse of time. (Crandall v. Woods , 8 Cal. 144; Bird v. Lisbros , 9 Cal. 1.) And there was nothing in the testimony, as the Court justly found, to show any intention to abandon.
But the most important point in the case is, whether the defendants, McKinney and Elmore, were entitled to the property, as against the plaintiff, upon the ground that they were subsequent purchasers in good faith and for a valuable consideration, they having first recorded their conveyances. (Wood's Dig. p. 103, § 26.) If this property is to be considered real estate, there can be no doubt as to the point.
In the case of the Merced Mining Company v. Fremont, (7 Cal. 317, 327,) we held that " the owner of a mining-claim has, in practical effect, a good vested title to the property; " and that " his right to protect the property, for the time being, under the peculiar circumstances of the case, was as full and perfect as if he was the tenant of the superior proprietor for years, or for life." And, in the subsequent case of Crandall v. Woods, (8 Cal. 143,) we held that " one who locates upon the public lands, with a view to appropriating them to his own use, becomes the absolute owner thereof, as against every one but the Government; and is entitled to all the privileges and incidents which appertain to the soil, subject to the single exception of rights antecedently acquired." So in the case of Bird v. Lisbros, (9 Cal. 1,) we held that " possession is evidence of title, and the party in possession is therefore deemed, in law, to be the owner; and when he conveys the land to another, he is deemed, in law, not to convey his evidence of title, but the title itself; of which the law, by reason of such evidence, adjudges him the owner, as against all not having a superior title."
In the same case we held, referring to the preceding case of Bird v. Dennison, (7 Cal. 297,) " that when a party relied upon possession as his sole evidence of title, he must be held to know the acts of those through whom he claims; and if he claims the benefit of some of their acts, he must share the responsibility of those that may be against him, when another party is, at the time of his purchase, in the actual adverse possession of the premises. In other words, the actual adverse possession of another party, at the time of the conveyance, will be notice to the purchaser, whose grantors only claimed by a possession short of the period fixed by the statute of limitations."
If, in this case, Partridge had sold to Townsend by a conveyance not recorded, and, afterwards, while Townsend was in possession, claiming the entire property as his own, Partridge had sold to another, by deed duly acknowledged and recorded, the second purchaser from Partridge would have been deemed to have purchased with notice; and would not, therefore, have been considered " a subsequent purchaser in good faith; " and Townsend would have been permitted to show the real state of the case as against this second vendee of Partridge. But the facts of this case are very different. The whole title of all parties rested upon possession only. Partridge had once been in possession with the others; but his possession was subsequent to that of Keller and Townsend. The conveyance from them to Partridge not having been recorded, there was no record notice that the title to the one-third interest had ever passed to Partridge; and he not being in possession at the date of the separate deeds from Townsend to McKinney and Elmore, they had no notice of any kind, and were, therefore, innocent purchasers for value. Conceding that the possession of Partridge, whilst it continued, was notice to all the world, the moment that possession ceased, the notice (which was only the legal effect of such possession) also ceased. It is true that the possession of one tenant-in-common is possession for all; but this possession in one for all ceases the moment it becomes adverse to the others (4 Kent. 370). Townsend claimed to hold, and did hold, the entire property adversely to Partridge, and could not, therefore, be deemed, in law, to hold for him.
Our conclusion is, that the plaintiff had no right, in this form of action, to recover against any of the parties defendant. Although the question does not arise in this case, as it now stands upon the record--and we, therefore, make no binding decision upon the point--yet we may remark that it would seem, from the testimony contained in the record, that plaintiff would have a right to an account, and for the value of his interest sold, as against Townsend; and a remedy against McKinney and Elmore, as debtors of Townsend, under proper circumstances.
For these reasons, the judgment is reversed, and a new trial ordered, with leave to the plaintiff to amend his complaint. We give this leave to amend in order to prevent the bar of the statute of limitations.
CONCUR
FIELD
Field, J. I concur in the judgment.