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thereafter.

as a claim, unless an action be commenced thereupon within one year unless action

brought within after making such entry, and within five years from the time when the five years right to make such entry descended or accrued.

Sec. 9. In every action for the recovery of real property, or the Presumption in possession thereof, the person establishing a legal title to the premises, establishing a

legal title. shall be presumed to have been possessed thereof, within the time prescribed by law, and the occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title, for five years before the commencement of such action. Sec. 10. Whenever it shall appear that the occupant or those Presumption of

adverse holding. under whom he claims, entered into the possession of premises, under claim of title, exclusive of any other right, founding such claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree, or judgment, or of some part of such premises, under such claim for five years, the premises so included shall be deemed to have been held adversely, except that when the Exception premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Sec. 11. For the purpose of constituting an adverse possession by What will con

stitute an adverse any person claiming a title founded upon a written instrument, or a possession or judgment or decree, land shall be deemed to have been possessed and founded on writ

ten instrument, occupied in the following cases : 1st. Where it has been usually cul- etc. tivated and improved. 2d. Where it has been protected by a substantial inclosure. 3d. Where (although not inclosed) it has been used for the supply of fuel, or of fencing timber for the purposes of husbandry; or for the use of pasturage, or for the ordinary use of the occupant. 4th. When a known lot or single farm has been partly improved, the portion of such farm or lot that may have been left not cleared, or not inclosed according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.

Sec. 12. When it shall appear that there has been an actual con- Continued occutinued occupation of premises, under a claim of title, exclusive of any adverse holding ather right, but not founded upon a written instrument, or a judgment, or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely.

Sec. 13. For the purpose of constituting an adverse possession, What will con

stitute adverse possession or

Possession of tenant the

by a person claiming title not founded upon a written instrument, Claim of title not judgment, or decree, land shall be deemed to have been possessed and written instru. occupied in the following cases only: 1. Where it has been protected ment, etc.

by a substantial inclosure : 2. Where it has been usually cultivated or improved.

Sec. 14. Whenever the relation of landlord and tenant shall have posssession of existed between any persons, the possession of the tenant shall be landlord.

deemed the possession of the landlord until the expiration of five years from the termination of the tenancy, or where there has been no written lease, until the expiration of five years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumptions shall not be made after the periods

herein limited. Descent cast, not Sec. 15. The right of a person to the possession of any real properto impair right.

ty shall not be impaired or affected by a descent being cast in consequence of the death of a person in possession of such property.

Sec. 16. If a person entitled to commence any action for the reto run during

covery of real proprrty, or to make an entry or defence, founded on certain periods.

the title to real property, or to rents or services out of the same, be, at the time such title shall first descend or accrue, either: 1. Within the age of twenty-one years; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; or, 4. A married woman: the time during which such disability shall continue, shall not be deemed any portion of the time in this act limited for the commencement of such action, or the making of such entry or defence, but such action may be commenced, or entry or defence made, within the period of five years after such disability shall cease, or after the death of the

person entitled, who shall die under such disability; but such action shall not be commenced, or entry or defence made after that period.

Time of limitation not

CHAPTER III.

THE TIME OF COMMENCING ACTIONS OTHER THAN FOR THE RECOVERY OF

REAL PROPERTY.

Periods of limitation in actions other than for the recovery of real property.

SECTION 17. Actions, other than those for the recovery of real property, can only be commenced as follows; Within five years : An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States. Within four years : An action upon any contract, obligation, or liability, founded upon an instrument of writing, except those mentioned in the preceding

section. Within three years: 1. An action upon a liability created by statute, other than a penalty or forfeiture; 2. An action for trespass upon real property; 3. An action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property; 4. An action for relief on the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud. Within two years: 1. An action upon a contract, obligation, or liability, not founded upon an instrument of writing, except an action on an open account, for goods, wares, and merchandise, and an action for any article charged in a store account; 2. An action against a sheriff, coroner, or constable, upon the 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 section shall not apply to an action for an escape. Within one year : 1. An action upon a statute for a penalty or forfeiture, where the action is given to an individual, or to an individual and the state, except where the statute imposing it prescribes a different limitation; 2. An action for libel, slander, assault, battery, or false imprisonment; 3. An action upon a statute for a forfeiture or penalty to the people of this state; 4. An action against a sheriff, or other officer, for the escape of a prisoner, arrested or imprisoned on civil process; 5. An action on an open account, for goods, wares, and merchandise sold and delivered ; 6. An action for any article charged in a store account.

Sec. 18. In an action brought to recover a balance due upon a action to recover mutual, open, and current account, where there have been reciprocal mutual account. demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side. Sec. 19. An action for relief, not hereinbefore provided for, must Action for relief

not provided for. be commenced within four years after the cause of action shall have accrued.

Sec. 20. The limitations prescribed in this chapter shall apply to to apply to actions brought in the name of the state, or for the benefit of the state behalf of "state. in the same manner as to actions by private parties.

CHAPTER IV.

GENERAL PROVISIONS AS TO THE TIME OF COMMENCING ACTIONS.

SECTION 21. An action shall be deemed to be commenced within the Action, when

deemed commenced.

Cause of action

state.

Time of limitation not

entitled to sue before time of limitation expires.

represen

meaning of this act when the complaint has been filed in the proper court.

Sec. 22. If, when the cause of action shall accrue against a person, accruing against he is out of the state, the action may be commenced within the term

herein limited, after his return to the state, and if, after the cause of action shall have accrued, he depart the state, the time of his absence shall not be part of the time limited for the commencement of the action.

SEC. 23. If a person, entitled to bring an action mentioned in the to run during last preceding chapter, except for a penalty or forfeiture, or against a certain periods.

sheriff or other officer for an escape, be, at the time the cause of action accrued, either : 1st, within the age of twenty-one years; or, 2d, insane; or, 3d, imprisoned on a criminal charge, or in execution under the sentence of a criminal court, for a term less than his natural life; or, 4th, a married woman: the time of such disability shall not be a part of the time limited for the commencement of the

action. Death of party Sec. 24. If a person entitled to bring an action die before the er

piration of the time limited for the commencement thereof, and the
cause of action survive, an action may be commenced by his
tatives, after the expiration of that time, and within six months from
his death. If a person against whom an action may be brought, die
before the expiration of the time limited for the commencement there-
of, and the cause of action survives, an action may be commenced
against his executors or administrators after the expiration of that
time, and within one year after the issuing of letters testamentary, or

of administration. Alien subject of

Sec. 25. When a person shall be an alien subject, or citizen of a country at war with the United States, the time of the continuance of the war shall not be part of the period limited for the commencement of the action,

Sec. 26. If an action shall be commenced within the time prescribed tient" hererseds- therefor, and a judgment therein for the plaintiff be reversed on ap

peal, the plaintiff, or if he die and the cause of action survive, his heirs or representatives, may commence a new action within one year after the reversal.

Sec. 27. When the commencement of an action shall be stayed by Commencement of action stayed injunction or statutory prohibition, the time of the continuance of the

injunction or prohibition shall not be part of the time limited for the

commencement of the action. Disability must

Sec. 28. No person shall avail himself of a disability, unless it es. exist when right isted when his right of action accrued.

hostile country.

Time of limita

Sec. 29. When two or more disabilities coexist at the time the Two or more

disabilities. right of action accrues, the limitation shall not attach until they all be removed.

Sec. 30. The preceding sections of this act shall not affect actions Not to apply to against directors or stockholders of a corporation to recover a penalty penalties against or forfeiture imposed, or to enforce a liability created by law; but rations, etc. such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created.

Sec. 31. No acknowledgment or promise shall be sufficient evidence Acknowledgment of a new or continuing contract, whereby to take the case out of the must be in writoperation of this statute, unless the same be contained in some writing signed by the party to be charged thereby.

ing to be valid.

CHAPTER CXLIX.

AN ACT defining the time of commencing Civil Actions in certain

cases. (1)—[Passed May 4, 1852.]

The People of the State of California, represented in Senate and

Assembly, do enact as follows:

certain actions.

one year,

Section 1. An action upon any contract, obligation or liability for the Limitation of payment of money, founded upon an instrument of writing executed out of this state, can only be commenced as follows: First, within

when more than two and less than five years have elapsed since the cause of action accrued ; Second, within six months, when more than five years have elapsed since the cause of action accrued.

Sec. 2. When the cause of action has arisen in another state or a Cases where no territory of the United States, or in a foreign country, and by the maintained in laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, no action thereon shall be maintained against him in this state.

action can be

this state.

(1) For act on same subject, see ante, chap. 148.

69.

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