Unger v. Mooney. Neither a hostile intent without such occupation, nor such occupation without hostile intent, is sufficient. The case of tenants in common is no exception to this rule. The evidence required is of a different character, from the legal character of the tenure, tenants in common being seized per my et per tout and the actual occupation of one tenant of the entire tract having no element of hostility to his cotenant. Such occupation with user of the land for husbandry, or of any kind, is reconcilable with right and in harmony with the legal aspects of the tenure. Hence there must be some conduct of the occupying tenant, evidenced by acts or declarations or both, in its nature and essence hostile to the title of the tenant out of possession, and imparting knowledge of such hostility to the latter to affect his right. Portis v. Hill, 3 Tex. 278. The important question here is, does the evidence show an ouster prior to the date at which it is found, and an adverse possession of sufficient duration to bar the plaintiff's action? The facts found are set forth above, together with the further fact not proved, that Emily Mooney paid the taxes during the whole time that she was in possession. We do not say this payment of taxes was proved, because the bill of exceptions shows that the offer was made to prove it, and it was ruled out, except as to the fact of payment since March, 1878, when the proviso to section 325 of the Code of Civil Procedure went into operation. The payment of taxes, it seems, is, under the circumstances of this case, competent evidence, along with the other facts admitted, to show the character of the holding by the party in possession, that it was adverse and under claim of title. Keyser v. Evans, 30 Penn. St. 509. The evidence shows the entry by Thomas Mooney under a deed executed to him by Sproul and wife, and Brokaw, conveying the whole premises, which deed was duly recorded soon after its execution. This is strong evidence of an ouster or disseisin. It bears the appearance of a declaration by the grantee that his entry under the deed is for himself exclusively, and not for another, that he enters in his own exclusive right. In Prescott v. Nevers, 4 Mas. 330, Judge STORY, in discussing the subject of the ouster of one tenant in common by another, used this language: "I take the principle of law to be clear, that where a person enters into land by a recorded deed, his entry and possession are referred to such title; and that he is deemed to have a seisin of the land co-extensive with the boundaries stated in his deed, where there Unger v. Mooney. is no open adverse possession of the land so described in any other person." This was said in 1827. Afterward, at the January term, 1845, of the Supreme Court of the United States, the same learned jurist, delivering the opinion of the court in Clymer's Lessee v. Dawkins, 3 How. 690, expressed himself thus: "In the case of the Lessee of Clarke v. Courtney, 5 Pet. 319, 354, this court also held, that when a person enters into land under a deed or title, his possession (in the absence of all other qualifying or controlling circumstances) is construed to be co-extensive with his deed or title; and although the deed or title may turn out to be defective or void, yet the true owner will be deemed disseised to the extent of the boundaries of such deed or title." The learned justice cites several other cases "affirming the same doctrine," viz. Green v. Liter, 8 Cr. 229, 230; Barr v. Gratz, 4 Wheat. 213, 223; Society for Propagating the Gospel v. Town of Pawlet, 4 Pet. 480, 504, 506; Blight's Lessees v. Rochester, 7 Wheat. 535. See also Bradstreet v. Huntington, 5 Pet. 439; Clapp v. Bromagham, 9 Cow. 531, 532, 533; Culler v. Motzer, 13 Serg. & R. 358; 15 Am. Dec. 604; Wright v. Saddler, 20 N. Y. 329, 330; Alexander v. Kennedy, 19 Tex. 496. In Culler v. Motzer, 13 Serg. & R. 358, it was held where the very point was in judgment that possession of land by a purchaser, under deed of an entire lot, is adverse to the rightful owner, though tenant in common with the grantor. There are numerous other cases to the same effect. Horne v. Howell, 46 Ga. 9; Cain v. Furlow, 47 id. 674; Gill v. Fauntleroy's Heirs, 8 B. Monr. 186; Long v. Stapp, 49 Mo. 508; Warfield v. Lindell, 30 id. 282; s. c., 38 id. 578; Lapeyre v. Paul, 47 id. 590; Gray v. Bates, 3 Strob. 500; Bogardus v. Trinity Church, 4 Paige, 178; Bigelow v. Jones, 10 Pick. 162; Goewey v. Urig, 15 Ill. 242; Hinkley v. Green, 52 id. 230-233; Townsend & Pastor's case, 4 Leon. 32; Reed v. Taylor, 5 Barn. & Adol. 575; Parker v. The Proprietors, etc., 3 Metc. 101; Thomas v. Garvan, 4 Dev. 223; 25 Am. Dec. 708; Cloud v. Webb, 4 Dev. 290; Hubbard v. Wood, 1 Sneed, 286; Weisinger v. Murphy, 2 Head, 674; Kinney v. Slatterly, 51 Iowa, 353; Abernathie v. Con. Virginia Mining Co., 16 Nev. 260; Caperton v. Gregory, 11 Gratt. 505. The deed to Mooney (its character is stated above) was recorded, and Mooney entered under it into a lot within the city of San Francisco, described in the complaint as being twenty-three by ninety feet. [Omitting details of evidence.] VOL. XLIX-14 Unger v. Mooney. Each one of these elements is established by the evidence. (1) There was open and notorious occupation by Mrs. Mooney and her husband. Mrs. Mooney and her husband were in possession when the deed was made to the former in December, 1868. They lived there for several months. Mrs. Mooney took possession in December, 1868. Her husband added to the house, raised it to a two-story house. Mrs. Mooney has let the house during this period to several tenants, and a tenant has occupied the house during nearly the whole period. She has made repairs on the house, improved it at a cost of from $1,800 to $2,000, received the rents of the property, paid taxes and assessments, has never accounted to any one, and no one ever demanded an account or to be let into possession until within a short time before the suit was brought. The deeds under which she claims and herself and her husband entered were recorded soon after made. Her acts of ownership and those of her husband were unequivocal and open to the observation of all, and during this period Metcalf, the alleged tenant in common, lived near enough to the city to have reached it in less than twelve hours, and had full opportunity of observing the condition of the lot, the change of possession from Brokaw, his cotenant, so-called, or that a person other than Brokaw was in possession, its occupation by tenants, and of ascertaining all the above-mentioned facts, which facts a man ordinarily regardful of his interests would have made himself acquainted with. The possession of other persons than Brokaw was enough to put Metcalf on inquiry, according to the rule in Fair v. Stevenot, 29 Cal. 486. If he had inquired he would have discovered the hostile character of the possession. This means of notice constituted notice. See Smith v. Yule, 31 Cal. 184; Pell v. McElroy, 36 id. 272. (2) The hostility of the plaintiff's claim of title is evident from the above facts, for the character of the possession may be evidenced by acts as well as words. Independent of the entry of Mooney and wife under the deeds of the whole lot, such acts indicate the adverse character of the holding. With the deeds we cannot see that there can be any doubt about it. [Minor matters omitted.] Judgment and order reversed and cause remanded for a new trial. MYRICK and SHARPSTEIN, JJ., concurred. Odd Fellows' Mutual Aid Association of San Francisco v. James. The secretary of a corporation, bound to receive its moneys and pay them over to the treasurer, is liable for such moneys stolen from him if he failed to use reasonable diligence in paying them over. A CTION on a bond. The opinion states the case. ant had judgment below. J. F. Cowdery, for appellant. R. Thompson, for respondent. The defend THORNTON, J. This is an action upon a bond for $5,000 executed by the defendants to the plaintiff, with this stipulation, that whereas Wallace T. James has been elected secretary of the Odd Fellows' Mutual Aid Association for the year commencing on the 5th day of February, 1878, and until his successor shall have been duly elected and qualified, now if the said James "shall in all respects fully, faithfully, well and truly perform all the duties of his said trust according to the constitution, by-laws, rules, and regulations of said association, and at the end of his official term surrender all books, papers, money, or sureties" (sic) belonging to or appertaining to his office, to such person or persons as said association may direct, then the bond was to be void, otherwise not. The breach of the bond assigned in the complaint is the failure of James to pay over to the treasurer of said corporation the sum of $1,455.25, moneys of the corporation received by him (James) as secretary, while he was in office as such, in the year 1878, and before the 15th of August in that year, which payment to the treasurer it was his duty to make, under the by-laws, rules, and regulations of the corporation. It is further averred that the corporation, by its treasurer, demanded of James the payment of the sum of money mentioned, which he refused to pay to him, and that it has never been paid. None of the allegations of the complaint are denied by the answer, except as hereinafter stated, but Odd Fellows' Mutual Aid Association of San Francisco v. James. the defendants set up in defense that the corporation was conducting and carrying on its business in a building known as the Odd Fellows' Hall Building in the city of San Francisco, that James, as secretary, was required by the association to occupy and do the business of the corporation it its office during all the times mentioned in the complaint, that the corporation furnished its office with an iron safe for the purpose of safely keeping its books, papers, and moneys; that in the usual and ordinary manner of doing the business of the corporation, the secretary (James) was accustomed to and did receive the funds of the corporation as the same were paid in from time to time, and deposit them in the safe above mentioned; that it was the usual and ordinary way of conducting the said business for James, the secretary, to allow the said funds to remain in the safe until the treasurer of the corporation called to receive them, that James did receive the sum of money mentioned in the complaint, and as was his usual custom and the custom of doing business, placed the same in the safe aforesaid; that after this money had been deposited in the safe, and before the treasurer called for or made any demands for it or any part of it, some person or persons unknown, in the night time, broke open the safe, and stole and carried away the money, without the knowledge or consent of James, and without any neglect or default on his part. The defendants further aver that James, in all things and at all times, faithfully performed all the duties of his trust according to the constitution, by-laws, "and usages of the said association "; that at the time the treasurer made the demand on him he did not have the sum of money mentioned, and that it was not his duty to pay over this money, or any part of it, to the treasurer, or in any way reimburse the corporation "for the said loss or any part thereof." We think it best to insert here the findings of the court below as to the facts of the case, which are as follows: "That the defendants made, executed and delivered the bond attached to the complaint at the time alleged; that by the constitution, by-laws, rules and regulations of said association mentioned in the condition of said bond, the secretary, Wallace T. James, was required to keep all the books of account of the association, to receive all the moneys of the association, giving his receipt for the same; to pay over all moneys in his possession belonging to the association to the treasurer, taking his receipt therefor; to write. |