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PART II.

OF CIVIL ACTIONS.

TITLE II.

OF THE TIME OF COMMENCING CIVIL ACTIONS.

CHAPTER III.

THE TIME OF COMMENCING ACTIONS OTHER THAN FOR THE RECOVERY

OF REAL PROPERTY.

$ 337. Within four years.
$ 339. Within two years.
8 341. Within six months.
8 348. No limitation where money or property deposited in bank.

set forth 307.

the legal prerequisites of the

creation of such a title by adverse posses1. One form of action only. We have

sion as would defeat the plaintiff's seisin but one form of action which has no special

in law.-People's Water Co. v. Boromeo, designation and it can not be defeated, as at

31 Cal. App. 270, 160 Pac. 574. common law because not properly named.Corey v. Struve, 170 Cal. 170, 149 Pac. 48.

8 322. 2. Under the reformed procedure, sub

1. stance is no longer subordinated to form,

Occupancy under written instrument, and, under that system, there is but one

etc.- Construction. This is a part of the

statute of limitations, and is intended to form of civil actions for the enforcement or protection of private rights and the re- present a rule to determine the time within dress or prevention

which an action to recover real property, of private wrongs.Johnson v. Dixon Farms Co., 29 Cal. App. 52,

or an action arising out of the title thereto, 155 Pac. 134.

must be begun in order to avoid the bar of sections 318 and 319. These sections must

all be construed in connection with section 8 315.

312. It is a necessary condition, therefore, 1. Time of commencement of actions

to the application of this section, that the Construction (subd. 1).—The words "right

occupancy be such as would constitute a or title" must of necessity refer to the right

cause of action by the owner of the senior or title of the state to sue and not to the

title.-Wheatley v. San Pedro, L. A. & S. L. right or title upon which the state bases

R. Co., 169 Cal. 505, 147 Pac. 135. its right to sue. If this were not so, the

2. Section 322 of the Code of Civil Prostate could not maintain an action in respect

cedure will not admit of the construction to land to which it held title for more than

that where the boundaries of the junior title ten years prior to the beginning of the

interfere with those of the senior title, action, although the invasion of its rights

so that part only of the area of each is which created the cause of action had been

common to both and is unoccupied, the very recent and within ten years.—People

junior holder who occupies a part of his v. Banning Co., 167 Cal. 643, 140 Pac. 587.

land not within the interference thereby 2. An action by the state to quiet title

becomes an adverse occupant of the overlap, to swamp land held in actual adverse pos

although the right of the owner of the session for more than ten years by persons senior title to the whole of his tract is claiming under a state patent, the former

nowhere invaded or disturbed.—Wheatley v. ownership by the state having been in its

San Pedro, L. A. & S. L. R. Co., 169 Cal. 505, proprietary capacity, is barred under this

147 Pac. 135. section.-People v. Banning Co., 167 Cal. 643,

3. The opening clause of section 322 that 140 Pac. 587.

"when it appears that the occupant, or those

under whom he claims, entered into posses318.

sion of the property under claim of title," 1. Seisin within five years-Construction. refers to the "property" of the opposing --An action to quiet title is, with respect owner, as distinguished from that described to the statute of limitations, an action to in the instrument constituting the color of recover real property and the possession title, and the "property" upon which he thereof, and is barred by five years adverse must enter to start his adverse claim against possession of the defendant. Beckett v. the true owner must be some part of the Petaluma, 171 Cal. 309, 153 Pac, 20.

property of that owner.-Wheatley V. San 2. This section is to be read in connec- Pedro, L. A. & S. L. R. Co., 169 Cal. 505, tion with sections 322, 323, and 325, which 147 Pac. 135.

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§ 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 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.

$ 324.

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.

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.

1. Adverse possession-Occupancy under claim of title.--In order to constitute an adverse possession sufficient to bar the claims of one holding the record title to land, the adverse character of the possession must in every case be manifested to the owner.—Mattes v. Hall, 28 Cal. App. 362, 152 Pac. 436.

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 v. Beale, 172 Cal. 226, 155 Pac. 990.

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 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.--Cona way 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.

§ 325.
ADVERSE POSSESSION OCCUPANCY
UNDER CLAIM OF TITLE NOT

WRITTEN.
1. Construction of section.
2, 3. Against what estate adverse posses.

sion operates. 4-6. Payment of taxes.

7. -Redemption from tax-sale not an. 8-13. What constitutes adverse possession.

1. Construction of section. The term "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

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.

8 326.

1. Relation of landlord and tenant 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

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.

2. A judgment reviewed by scire facias constitutes a

new

cause of action upon which the statute of limitations begins to run from its rendition.-Thomas v. Lally, 28 Cal. App. 308, 152 Pac. 53.

8 337. 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
Amdts. 1873-4, p. 291; June 3, 1906, Stats. and Amdts. 1906, p. 5;
March 19, 1907, Stats. and Amdts, 1907, p. 599, Kerr's Stats. and
Amdts. 1906-7, p. 435; May 10, 1917, Stats, and Amdts. 1917, p. 299.
In effect July 27, 1917.

LIMITATION OF ACTION-FOUR YEARS. the whole account is barred; and in such 1-3. Open book account.

a case subsequent items are unavailing to 4. Promissory note.

remove the bar.-Welch v. County of Santa 5. When amended complaint stops statute

Cruz, 30 Cal. App. 123, 156 Pac. 1003. running

Promissory note.-A promissory note

due one day after date becomes barred four 1. Open book account.-An action on an

years after maturity, under section 337 of open book account, commenced within four

the Code of Civil Procedure.-In re Blankenyears, is not barred by the statute of limitations.-Mercantile Trust Co. V. Doe, 26

ship, 220 Fed. 395. Cal. App. 246, 146 Pac. 692.

When amended complaint stops stat2. An open book account is one which

ute running.- Where the cause stated in is continuous or current, uninterrupted or

the complaint is a new and totally different unclosed by settlement or otherwise, con

cause of action from that stated in the sisting of a series of transactions; also one

original complaint the amendment does not in which some item in the contract is left relate back to the beginning of the action open and undetermined by the parties, in

so as to stop the running of the statute which sense it may exist whether there be

of limitations. But if the amendment be but one item or many.-Mercantile Trust

one which merely corrects a defective or

erroneous pleading of the same Co. v. Doe, 26 Cal. App. 246, 146 Pac. 692.

cause of 3. Where the mutual dealings have ceased

action, the amendment will relate back to for the statutory period after the date of

the filing of the original complaint.-Hunt the last item, so that during that time there

v. Glassel, 30 Cal. App. 676, 159 Pac. 227. are no items on either side of the account, See, also, post, C. C. P. pt., $ 350.

§ 338. LIMITATION OF ACTION-THREE YEARS.

1. Construction of section-Subdivision 1. 2-4. -Subdivision 4. 5. Claim and delivery against adminis

trator. 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.

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 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. 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.

8 339. WITHIN TWO YEARS. Within two years. 1.

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.

History: Enacted March 11, 1872; amended March 24, 1874, Code
Amdts. 1873-4, p. 292; March 18, 1905, Stats. and Amdts. 1905, p. 231;
June 3, 1906, Stats, and Amdts. 1906; March 19, 1907, Stats. and Amdts.
1907, p. 599, Kerr's Stats. and Amdts. 1906-7, p. 435; May 30, 1913,
Stats. and Amdts. 1913, p. 332; May 10, 1917, Stats. and Amdts. 1917,

p. 299. In effect July 27, 1917, 1. Limitation of action - Two years, fish and game warden, the complaint albreach of covenant.--The breach of a coy- leging defendant unlawfully arrested plainenant of seisin contained in a deed of land tiff on his launch in the night-time without to which the grantor never had any title a warrant, and compelled him to leave his occurs at the time of the execution of the said launch without protection from the deed and is barred in two years.—McCor- winds and storms, and without himself takmick v. Marcy, 165 Cal. 386, 132 Pac. 449. ing necessary steps for the protection of the

launch, by reason whereof the launch was 8.340.

completely wrecked and the personal propLIMITATION OF ACTION-ONE YEAR.

erty of the plaintiff therein destroyed, and

a demurrer was interposed on the ground 1. Damages for loss of services of wife

that the action was barred by subdivision 3 (subd. 3).

of this section, on the theory that the action 2. Action for negligence-Demurrer raising

was for false imprisonment, the court held statute (subd. 3). 3. Personal injuries to married woman.

that complaint stated a cause of action for

negligence and not for false imprisonment. 1. Damages for loss of services of wife -Argyropolus v. Barnes, 28 Cal. App. 254, (subd. 3).-An action for damages for loss 151 Pac. 1156. of a wife's services and for expenses of 3. Personal lujuries to married wounan. medical care comes within the period pre- In an action to recover damages for perscribed by this subdivision, being based upon sonal injuries sustained by a married wothe injury or tort, and not one based upon man, her husband, if living with her, is a a contract of carriage under subdivision 1 necessary party, and where he deserts her of section 339.-Basler v. Sacramento Elec., after the cause of action accrues, the statute Gas & R. Co., 166 Cal. 33, 134 Pac. 993.

of limitations does not commence to run Action for negligence Demurrer rals- against her until the date of such desertion. ing statute (subd. 3).-In an action brought --Mortell v. Los Angeles College of Osteopby a fisherman for damages against a deputy athy, 30 Cal. App. 422, 158 Pac. 508.

8 341. 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.

History: Enacted March 11, 1872; amended March 24, 1874, Code
Amdts. 1873-4, p. 292; May 11, 1917, Stats, and Amdts. 1917, p. 381.
In effect July 27, 1917.

breach of the trust. —Cortelyou v. Imperial

Land Co., 166 Cal. 14, 134 Pac. 981. LIMITATION OF ACTION-RELIEF NOT

2. The statute of limitations does not OTHERWISE PROVIDED.

begin to run against a voluntary trust until 1, 2. Action against trustee.

its repudiation.—Lamb v. Lamb, 171 Cal. 578, 3. Action for reinstatement by police

153 Pac. 913; Arnold v. Loomis, 170 Cal. 95, officer.

148 Pac. 518. 4. Action to enforce agreement to make

Action for reinstatement

police a will.

officer.—The right of a member of a police 1. Action against trustee. Where one force, whose resignation had been accepted has become by law trustee for an indefinite because of mental collapse, to be reinstated period the statute of limitations is that is barred by laches, and by the provisions of herein provided, and the statute does not this and section 338, where mandamus probegin to run until there has been a known ceedings were not instituted until nearly

§ 343.

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