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plowed and cultivated a portion thereof; that in 1881 the land was leased to one Gillet for the term of one year; that after the making of the lease to Gillet, Dutton sold and conveyed the land to J. W. Dodge, and thereafter took charge of the place for Dodge, and employed one Nance, who plowed and sowed a portion of the land in dispute in the fall of 1882; that a portion of the land thus plowed was put in grain, and the balance of it reserved as summer-fallow; that in 1883 Nance was again engaged to plow and sow the land, and was about to go to work when he was forbidden to do so by the defendant, Yates, who had entered upon the land in August, 1883, put up a house, and dug a well thereon, these improvements being made upon the land, which had been summer-fallowed by the agent of the plaintiff; that the place was leased by plaintiff to one Pigott in 1883, who had cut the crop grown on the land for hay, and had his hogs feeding on the volunteer when the defendant, Yates, went into possession. Neither the plaintiff nor any one in his employ has ever actually resided on the land. There is no question, however, that the land was originally inclosed with a substantial fence. This fence has since been considerably broken down, and parts of it removed. Upon all the evidence in the case it was for the jury to determine whether or not the artificial barriers and the acts of dominion were sufficient to notify the public that the land was appropriated, and to impart to the claim of appropriation the characteristic notoriety and indicia of ownership. (Brumagim v. Bradshaw, 39 Cal. 25.) It was not error under the evidence in the case to instruct the jury that “a party may be in possession of land without a personal residence thereon, or without having personally cultivated it.” This instruction does not assume, as we read it, that “if the plaintiff had no agent or employee in possession of the land, and was not living on it himself, and did not cultivate it, he might still recover in this case on the bare fact that the land was once inclosed and claimed by plaintiff,” as claimed by appellant. Personal residence on the land was not essential. (Barstow, v. Newman, 34 Cal. 90.) The plaintiff’s grantors had actual possession of the land, and inclosed the same with a substantial fence, and erected valuable improvements within the inclosure, and while claiming and using the land as their own, they conveyed the same to plaintiff by a good and sufficient deed. The good faith of the plaintiff in taking possession under said deed, through his employees and tenant, does not seem to be questioned; but it is claimed that inasmuch as the plaintiff himself never took actual possession of the lands, the deed did not give him constructive possession of all the land named therein, and that, at most, the plaintiff can claim only about ten acres, the portion which was actually cultivated; but the land was inclosed when plaintiff purchased and by his agents took possession, and it has been held here that “a party who enters into actual possession of a portion of a tract of land, claiming the whole under a deed in which the entire tract is described by metes and bounds, is not limited in his possession to his actual inclosure or possession, but acquires constructive possession of the entire tract, if it is not in the adverse possession of any other person at the time of his entry, and that such person in an action to recover possession of the land will prevail against one who enters subsequently upon the uninclosed part as a mere intruder, or showing color of title only. . . . . The fact that Crowell had neither title nor actual possession, puts the case within instead of without the rule. It is the want of title and actual possession in the grantor that renders the rule necessary to the grantee. If the grantor has title, there can be no question between his grantee and a subsequent intruder, either as to actual or constructive possession. And so, if he has actual possession, and his grantee succeeds to it, there can be no question between the latter and an intruder as to constructive possession.” (Walsh v. Hill. 38 Cal. 482.) While the preponderance of evidence appears from the record to be on the side of the defendant, there is a substantial conflict therein as to the material issues. Therefore, the verdict of the jury cannot be disturbed. Judgment and order affirmed.
McKINSTRY, J., and TEMPLE, J., concurred.
[No. 11237. Department One.—May 23, 1888.] A. W. RANDALL, REspond ENT, v. W. S. HUNTER ET AL. W. S. HUNTER, APPELLANT.
PARTNERSHIP-AGREEMENT to PAY INDIVIDUAL DEBT—FIRM NoTE.— Where a partnership agreement provides that an existing individual debt of one of the partners shall be assumed and paid by the firm, either of the partners has authority to execute the note of the firm to secure the payment of such indebtedness.
APPEAL from a judgment of the Superior Court of
Humboldt County, and from an order refusing a new trial.
The facts are stated in the opinion of the court.
J. D. H. Chamberlin, and G. W. Hunter, for Appellant. S. M. Buck, and J. J. DeHaven, for Respondent.
McFARLAND, J.-The appellant, W. S. Hunter, and C. W. Gill, were partners, doing a general merchandising business in Petrolia, Humboldt County, under the firm name of Gill & Hunter. While they were thus partners, Gill, on May 25, 1881, made and delivered to the plaintiff, Randall, a partnership promissory note for one thousand dollars, signing to it the firm name, “Gill & Hunter,” and to recover the balance due upon said note, this action was brought. Gill made default, and Hunter answered, setting up the defense that Gill, to plaintiff's knowledge, made the note without Hunter's knowledge or consent, for Gill’s individual use and benefit, and not in the business, or for the use of the firm, etc. The jury rendered a verdict for the amount of the balance due on the note, and judgment was entered for that amount. From this judgment, and from an order denying a new trial, Hunter appeals. Gill was originally the sole owner of the business, stock of goods, etc., and had sold an undivided one half to one C. W. Long. Long had paid Gill for the onehalf interest some fifteen hundred dollars in cash, and had given him his two promissory notes for one thousand dollars each. One of these notes Gill had given to plaintiff Randall as security for money furnished by Randall to Gill. A short time after Long had bought into the business he resold to Gill upon the same terms as those upon which he had bought. The fifteen hundred was repaid to him, and one of the promissory notes redelivered, but the other, being held by Randall, could not be, at that time, redelivered to Long, and Gill agreed to take care of said note, and to protect Long from any liability on it. About the time Long resold to Gill, the defendant Hunter purchased from Gill the one-half interest which Long had held; and within two months afterward Gill took up the note made by Long, and held by plaintiff Randall, by giving to the latter the firm note of Gill & Hunter, upon which this suit was brought. Now, it was claimed at the trial that it was part of the transaction of the sale from Gill to Hunter, that the firm of Gill & Hunter should pay the indebtedness of Gill to Randall, and that the said firm note sued on was made with the knowledge and consent of Hunter, and that the latter acquiesced in and ratified it. This appellant denied, and the issue thus made was passed upon by the jury adversely to appellant. The case comes here upon exceptions to rulings of the court upon the admissibility of evidence, and to instruc. tions to the jury given and refused. These exceptions are numerous, and no one is more entitled to special notice than either of the others. They involve no particular principle of law or rule of practice, and are of no general importance. We think, therefore, that no useful purpose would be served by noticing in detail each individual exception, and it is sufficient to say that in our opinion no material error can be found in the rulings of the court, and that the instructions fairly presented the issue to the jury. When the case was here before, this court held that “where a partnership agreement provides that an existing individual debt of one of the partners shall be assumed and paid by the firm, either of the partners has authority to execute the note of the firm to secure the payment of such indebtedness.” (Randall v. Hunter, 66 Cal. 512.) Judgment and order denying a new trial affirmed.
McKINSTRY, J., and TEMPLE, J., concurred.
[No. 11270. Department Two.—May 23, 1888.] MAGGIE G. McDONALD, REs Pond ENT, v. DANIEL SWETT, APPELLANT.
PRACTICE—WANT OF PRosecution—DELAY IN SERVING SUMMON s—DISCRETION.—The refusal to dismiss an action for want of prosecution, on the ground that the plaintiff had neglected to serve the summons for a period of twenty-one months after its issuance, is not an abuse of discretion. ID.—MoTION to DIs MIss—ExtENSION OF TIME TO ANSWER.—A motion by the defendant to dismiss the action does not extend the time to amswer: and a refusal to set aside a default entered pending such a motion is not an abuse of discretion. LXXVI. CAL.-17