THE TIME OF COMMENCING ACTIONS OTHER THAN FOR THE RECOVERY OF REAL PROPERTY. § 337. Within four years. § 339. Within two years. § 307. § 341. Within six months. § 348. No limitation where money or property deposited in bank. 1. One form of action only.-We have but one form of action which has no special designation and it can not be defeated, as at common law because not properly named.— Corey v. Struve, 170 Cal. 170, 149 Pac. 48. 2. Under the reformed procedure, substance is no longer subordinated to form, and, under that system, there is but one form of civil actions for the enforcement or protection of private rights and the redress or prevention of private wrongs.Johnson v. Dixon Farms Co., 29 Cal. App. 52, 155 Pac. 134. § 315. 1. Time of commencement of actionsConstruction (subd. 1). The words "right or title" must of necessity refer to the right or title of the state to sue and not to the right or title upon which the state bases If this were not so, the its right to sue. state could not maintain an action in respect to land to which it held title for more than ten years prior to the beginning of the action, although the invasion of its rights which created the cause of action had been very recent and within ten years.-People v. Banning Co., 167 Cal. 643, 140 Pac. 587. 2. An action by the state to quiet title to swamp land held in actual adverse possession for more than ten years by persons claiming under a state patent, the former ownership by the state having been in its proprietary capacity, is barred under this section.-People v. Banning Co., 167 Cal. 643, 140 Pac. 587. § 318. 1. Seisin within five years-Construction. -An action to quiet title is, with respect to the statute of limitations, an action to recover real property and the possession thereof, and is barred by five years adverse Beckett v. possession of the defendant. Petaluma, 171 Cal. 309, 153 Pac. 20. 2. This section is to be read in connection with sections 322, 323, and 325, which the set forth the legal prerequisites of creation of such a title by adverse possession as would defeat the plaintiff's seisin in law. People's Water Co. v. Boromeo, 31 Cal. App. 270, 160 Pac. 574. § 322. 1. Occupancy under written instrument, etc.-Construction.-This is a part of the statute of limitations, and is intended to present a rule to determine the time within which an action to recover real property, or an action arising out of the title thereto, must be begun in order to avoid the bar of sections 318 and 319. These sections must all be construed in connection with section 312. It is a necessary condition, therefore, to the application of this section, that the occupancy be such as would constitute a cause of action by the owner of the senior title. Wheatley v. San Pedro, L. A. & S. L. R. Co., 169 Cal. 505, 147 Pac. 135. 2. Section 322 of the Code of Civil Procedure will not admit of the construction that where the boundaries of the junior title interfere with those of the senior title, so that part only of the area of each is common to both and is unoccupied, the junior holder who occupies a part of his land not within the interference thereby becomes an adverse occupant of the overlap, owner of the although the right of the senior title to the whole of his tract is nowhere invaded or disturbed.-Wheatley v. San Pedro, L. A. & S. L. R. Co., 169 Cal. 505, 147 Pac. 135. 3. The opening clause of section 322 that "when it appears that the occupant, or those under whom he claims, entered into possession of the property under claim of title," refers to the "property" of the opposing owner, as distinguished from that described in the instrument constituting the color of which he title, and the "property" upon must enter to start his adverse claim against the true owner must be some part of the property of that owner.-Wheatley v. San Pedro, L. A. & S. L. R. Co., 169 Cal. 505, 147 Pac. 135. § 323. 1. Adverse possession under written instrument, etc.-As to what constitutes (subd. 3). In an action to quiet title to grazing land, the defense of adverse possession under color of title is not established by the grantee of the holder of a void tax deed, where it is not shown that he at any time personally or otherwise occupied and SO used the land, or that he did anything with reference thereto except to pay the taxes thereon.-Cory v. Hotchkiss, 31 Cal. App. 443, 160 Pac. 841. 2. The leasing of such land for pasturage purposes by the codefendant in the action to a third party for several years prior to the action is not sufficient to establish adverse possession in either of the defendants, where there is no evidence that in so leasing the land he was acting for his codefendant, or jointly for himself as such codefendant.Cory v. Hotchkiss, 31 Cal. App. 443, 160 Pac. 841. 3. -As to requirements under McEnerney Act.-Inasmuch as the McEnerney Act does not require proof of title by adverse possession as a prerequisite to the relief to be given, therefore it is unnecessary to show the same adverse possession with all the elements required in this section.-Larsen v. All Persons, 165 Cal. 407, 132 Pac. 751. ADVERSE POSSESSION OCCUPANCY UNDER CLAIM OF TITLE NOT WRITTEN. 1. Construction of section. 2, 3. Against what estate adverse possession operates. 4-6. Payment of taxes. 7. Redemption from tax-sale not an. 8-13. What constitutes adverse possession. 1. Construction of section.-The terms "levied" and "assessed" employed herein in relation to taxes have reference to the act of the board of supervisors in making the levy and of the assessor in making the assessment, and have no reference to the acts of the auditor in making the computations and carrying out the columns and segregating instalments required by section 3731 of the Political Code.-People's Water Co. v. Boromeo, 31 Cal. App. 270, 160 Pac. 574. 2. Against what estate adverse possession operates.-There is nothing in the law of California from which it can be reasonably inferred that the state intends that adverse possession shall operate against the subordinate estate in cases in which it is inoperative upon the public use.-Patton v. City of Los Angeles, 169 Cal. 521, sub nom. Patton v. City of Wilmington, 147 Pac. 141. 3. Where under the law the hostile possession can not operate upon the easement for the enjoyment of which the surface is necessary, and where no notice of any claim to the servient estate is brought home to the owner thereof, such possession could not affect or divest such servient estate.Patton v. City of Los Angeles, 169 Cal. 521, sub nom. Patton v. City of Wilmington, 147 Pac. 141. 4. Payment of taxes.-The payment of taxes is essential to the acquirement of title by adverse possession.-People's Water Co. v. Anderson, 170 Cal. 683, 151 Pac. 127. 5. Payment of the taxes has been an essential element of adverse possession since 1878.-Gibbons v. Yosemite Lumber Co., 172 Cal. 714, 158 Pac. 196. 6. The payment of some of the taxes would not alone meet the requirement of this section.-Nichols v. Wolf, 27 Cal. App. 1, 148 Pac. 799. 7. —Redemption from tax-sale not a.Redeeming land from tax-sales is not the payment of taxes contemplated by the law as an element of adverse possession.-Gallo v. Gallo, 31 Cal. App. 189, 159 Pac. 1058. 8. What constitutes adverse possession.— The fact that it is unlawful for the disseisor to enter and maintain his actual possession not only does not impair the efficacy of such possession as a means of acquiring title, but it is essential thereto.-Beckett v. Petaluma, 171 Cal. 309, 153 Pac. 20. 9. The grazing of cattle on uninclosed land for several years, beginning at a time long prior to the acquisition of the tax deed upon which the defendant founded his claim of title, is not sufficient to establish adverse possession.-Jordan Cal. 226, 155 Pac. 990. v. Beale, 172 10. In order to be adverse, possession must be under a continuous claim of title hostile to that of the opposing party for the period prescribed by law.-Jordan V. Beale, 172 Cal. 226, 155 Pac. 990. 11. An owner of premises is presumed to know the true location of his boundaries and is bound to take notice of the nature and extent of possession by a claimant.Conaway v. Toogood, 172 Cal. 706, 158 Pac. 200. 12. The owner must have notice of the hostile claim. Ordinarily the inclosure and occupation and cultivation of land give such notice, but other facts in the case may be such as to show that no inference of hostile holding could be drawn from the fact of inclosure and cultivation.-Mattes v. Hall, 28 Cal. App. 361, 152 Pac. 436. 13. One who does not connect himself with a record title can not be said to have had possession of land under color of title, and in order to establish a claim of adverse possession it is incumbent upon him to show compliance with subdivisions 1 and 2, and if he fails to do so his claim falls.Cory v. Hotchkiss, 31 Cal. App. 443, 160 Pac. 841. § 326. 1. Relation of landlord and tenant as affecting adverse possession. — The possession of a tenant inures to the benefit of the landlord and constitutes the possession of the landlord for the purpose of securing him the benefits of the adverse possession so as to gain prescription thereby, and also to secure him the benefits of the bar of the statute of limitations as against an action begun by a hostile claimant.-Beckett v. Petaluma, 171 Cal. 309, 153 Pac. 20. 2. Title by adverse possession to beach and water lots of San Francisco can not be acquired by holders of alcalde deeds and their successors in interest, as against the purchasers of the reversionary interests of the state therein, as the possession of such holders and that of their successors is under the state grant of the leasehold interest.— Potrero Nuevo Land Co. v. All Persons, 29 Cal. App. 743, 156 Pac. 876. 3. Where a person enters into possession of real property by permission of the owner, without any tenancy whatever being created except at sufferance, possession being given merely as a matter of favor, he can never acquire title by adverse possession, no matter how long continued, against the true owner, unless there is a clear, positive, unequivocal disclaimer and disavowal of the owner's title and the assertion by the occupant of a title in hostility thereto, notice thereof being brought home to the land owner. Mattes v. Hall, 28 Cal. App. 362, 152 Pac. 436. § 336. 1. Limitation of action-Five years, revival of judgment.—An order reviving by a writ of scire facias a judgment obtained in the state of Illinois, more than twenty years after the original judgment was made, is not a new judgment, but a continuation of the old one, and is not barred in this state by section 336 of the Code of Civil Procedure, which provides that an action upon a judgment or decree of any court of the United States or of any state within the United States must be commenced within five years.-Thomas v. Lally, 28 Cal. App. 308, 152 Pac. 53. § 337. WITHIN FOUR YEARS. Within four years. Within four years. 1. An action upon any contract, obligation or liability found upon an instrument in writing. 2. An action to recover (1) upon a book account whether consisting of one or more entries; (2) upon an account stated; (3) a balance due upon a mutual open and current account; provided, however, that where an account stated is based upon an account of one item, the time shall begin to run from the date of said item, and where an account stated is based upon an account of more than one item, the time shall begin to run from the date of the last item. History: Enacted March 11, 1872; amended March 24, 1874, Code LIMITATION OF ACTION-FOUR YEARS. 1-3. Open book account. 4. Promissory note. 5. When amended complaint stops statute running. 1. Open book account.-An action on an open book account, commenced within four years, is not barred by the statute of limitations.-Mercantile Trust Co. v. Doe, 26 Cal. App. 246, 146 Pac. 692. 2. An open book account is one which is continuous or current, uninterrupted or unclosed by settlement or otherwise, consisting of a series of transactions; also one in which some item in the contract is left open and undetermined by the parties, in which sense it may exist whether there be but one item or many.-Mercantile Trust Co. v. Doe, 26 Cal. App. 246, 146 Pac. 692. 3. Where the mutual dealings have ceased for the statutory period after the date of the last item, so that during that time there are no items on either side of the account, a the whole account is barred; and in such case subsequent items are unavailing to remove the bar.-Welch v. County of Santa Cruz, 30 Cal. App. 123, 156 Pac. 1003. 4. Promissory note.-A promissory note due one day after date becomes barred four years after maturity, under section 337 of the Code of Civil Procedure.-In re Blankenship, 220 Fed. 395. 5. When amended complaint stops statute running. Where the cause stated in the complaint is a new and totally different cause of action from that stated in the original complaint the amendment does not relate back to the beginning of the action SO as to stop the running of the statute of limitations. But if the amendment be one which merely corrects a defective or erroneous pleading of the cause of action, the amendment will relate back to the filing of the original complaint.-Hunt v. Glassel, 30 Cal. App. 676, 159 Pac. 227. See, also, post, C. C. P. pt., § 350. same § 338. LIMITATION OF ACTION-THREE YEARS. 1. Construction of section-Subdivision 1. 2-4. Subdivision 4. 5. Claim and delivery against administrator. 6-11. Relief from fraud, actions for (subd. 4). 1. Construction of section-Subdivision 1. -A cause of action for the violation of the statutory duty of an auditor is one for a liability created by statute. Calaveras County v. Poe, 167 Cal. 519, 140 Pac. 23. 2. Subdivision 4.-The rule that a cause of action for relief on the ground of fraud or mistake must be commenced within three years from the time of discovery does not apply to mere defenses.-Cox v. Schnerr, 172 Cal. 371, 156 Pac. 509. 3. The fact that the defendant was in possession of the property does not change the rule. Cox v. Schnerr, 172 Cal. 371, 156 Pac. 509. 4. Where in an action to quiet title the plaintiff depends upon a purported deed, and the defendant by way of defense sets up fraud in its procurement, he is not barred from making such defense because of the fact that by subdivision 4 of section 338 of the Code of Civil Procedure more than three years had expired since the date of the deed.-Cox v. Schnerr, 172 Cal. 371, 156 Pac. 509. 5. Claim and delivery against administrator.-A claim and delivery action to recover certain articles of jewelry alleged to belong to the estate of plaintiff's intestate which defendant is alleged to have wrongfully taken after the death of the decedent is barred under this subdivision, although no administration was ever had upon decedent's estate until more than sixteen years thereafter. Sullivan v. Gillon, 26 Cal. App. 421, 147 Pac. 215. 6. Relief from fraud, actions for (subd. 4). An action by one attorney against another to enforce an oral agreement for the equal division of fees and to recover pursuant to the agreement the payment which had been fraudulently concealed is one for relief under subdivision 4, and is barred by the statute of limitations after two years after plaintiff's discovery of the fraudulent concealment under section 339, subdivision 1. -Boyer v. Barrows, 166 Cal. 757, 138 Pac. 354. 7. Where the answer demanded a reformation of a lease on the ground of mistake is omitting a covenant, the cause of action to enforce the reformation accrued upon the discovery of the facts constituting the mistake. The mere averment of ignorance of a fact which a party might with reasonable diligence have discovered is not enough to postpone the running of the statute.Bradbury v. Higginson, 167 Cal. 553, 140 Pac. 254. 8. It is difficult to state as a general proposition what period will bar relief from consequences of fraud, and there is a wide scope for the exercise of the discretion of the chancellor.-Dufour v. Weissberger, 172 Cal. 223, 155 Pac. 984. 9. A complaint in an action for damages for fraud in the procurement of a sale of corporate stock, filed six years and four months after the alleged fraud, which contains no facts showing why the same was not sooner discovered, but which simply recites that the fraud was not known or discovered until about a certain date, is insufficient.-Glindemann v. Ehrenpfort, 29 Cal. App. 87, 154 Pac. 484. 10. It is not enough to assert that the discovery was not sooner made. It must appear that it could not have been made by the exercise of reasonable diligence; and all that reasonable diligence would have disclosed plaintiff is presumed to have known, means of knowledge in such a case being the equivalent of the knowledge which it would have produced. - Montgomery Peterson, 27 Cal. App. 671, 151 Pac. 23. Cal. App. 671, 151 Pac. 23. 11. -- V. An averment that the plaintiff has but recently, naming a date, discovered that the representations made to her were false, fraudulent, and untrue, and she had not until the said time discovered the fraud and deceit is a sufficient averment of the want of discovery of the facts constituting fraud, especially where the plaintiff was at all times a nonresident of the state.-Teats v. Caldwell, 28 Cal. App. 206, 151 Pac. 973. § 339. WITHIN TWO YEARS. Within two years. 1. An action upon a contract, obligation or liability not founded upon an instrument of writing, other than that mentioned in subdivision two of section three hundred thirty-seven of this code; or an action founded upon a contract, obligation or liability, evidenced by a certificate, or abstract or guaranty of title of real property, or by a policy of title insurance; provided, that the cause of action upon a contract, obligation or liability evidenced by a certificate, or abstract or guaranty of title of real property or policy of title insurance shall not be deemed to have accrued until the discovery of the loss or damage suffered by the aggrieved party thereunder. 2. An action against a sheriff, coroner, or constable upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty including the nonpayment of money collected upon an execution. But this subdivision does not apply to an action for an escape. 1. History: Enacted March 11, 1872; amended March 24, 1874, Code Limitation of action - Two years, breach of covenant.-The breach of a covenant of seisin contained in a deed of land to which the grantor never had any title occurs at the time of the execution of the deed and is barred in two years.-McCormick v. Marcy, 165 Cal. 386, 132 Pac. 449. § 340. LIMITATION OF ACTION-ONE YEAR. 1. Damages for loss of services of wife (subd. 3). 2. Action for negligence-Demurrer raising statute (subd. 3). 3. Personal injuries to married woman. 1. Damages for loss of services of wife (subd. 3).—An action for damages for loss of a wife's services and for expenses of medical care comes within the period prescribed by this subdivision, being based upon the injury or tort, and not one based upon a contract of carriage under subdivision 1 of section 339.-Basler v. Sacramento Elec., Gas & R. Co., 166 Cal. 33, 134 Pac. 993. 2. Action for negligence-Demurrer raising statute (subd. 3).—In an action brought by a fisherman for damages against a deputy fish and game warden, the complaint alleging defendant unlawfully arrested plaintiff on his launch in the night-time without a warrant, and compelled him to leave his said launch without protection from the winds and storms, and without himself taking necessary steps for the protection of the launch, by reason whereof the launch was completely wrecked and the personal property of the plaintiff therein destroyed, and a demurrer was interposed on the ground that the action was barred by subdivision 3 of this section, on the theory that the action was for false imprisonment, the court held that complaint stated a cause of action for negligence and not for false imprisonment. -Argyropolus v. Barnes, 28 Cal. App. 254, 151 Pac. 1156. 3. Personal injuries to married woman.— In an action to recover damages for personal injuries sustained by a married woman, her husband, if living with her, is a necessary party, and where he deserts her after the cause of action accrues, the statute of limitations does not commence to run against her until the date of such desertion. --Mortell v. Los Angeles College of Osteopathy, 30 Cal. App. 422, 158 Pac. 508. § 341. WITHIN SIX MONTHS. Within six months: An action against an officer, or officer de facto: 1. To recover any goods, wares, merchandise, or other property, seized by any such officer in his official capacity as tax-collector, or to recover the price or value of any goods, wares, merchandise, or other personal property so seized, or for damages for the seizure, detention, sale of, or injury to any goods, wares, merchandise, or other personal property seized, or for damages done to any person or property in making any such seizure. 2. To recover stock sold for a delinquent assessment, as provided in section three hundred forty-seven of the Civil Code. 3. To set aside or invalidate any action taken or performed by a majority of the trustees of any corporation heretofore or hereafter dissolved by operation of law, including the revivor of any such corporation. § 343. History: Enacted March 11, 1872; amended March 24, 1874, Code 3941 breach of the trust.-Cortelyou v. Imperial Land Co., 166 Cal. 14, 134 Pac. 981. 2. The statute of limitations does not begin to run against a voluntary trust until its repudiation.-Lamb v. Lamb, 171 Cal. 578, 153 Pac. 913; Arnold v. Loomis, 170 Cal. 95, 148 Pac. 518. 3. Action for reinstatement as police officer.-The right of a member of a police force, whose resignation had been accepted because of mental collapse, to be reinstated is barred by laches, and by the provisions of this and section 338, where mandamus proceedings were not instituted until nearly |