McLeran v. Benton , 31 Cal. 29 ( 1866 )

By the Court, Shafter, J.:

Ejectment. The plaintiff was nonsuited at the trial on the ground that the right of action was not in him, but in Thomas Hayes, as surviving executor of J. B. Harmon.

The evidence of the plaintiff tended to prove that the demanded premises belonged originally to Jacob Harmon and Elenora, his wife, in community. That on the 13th day of September, 1849, the wife brought suit against her husband' in the Court of First Instance, praying for a dissolution of the bonds of matrimony and for a division of the common property, and that such proceedings were had therein that after-wards, on the 24th day of October, 1849, a decree was rendered divorcing the parties and directing an equal division of the common property. From this decree Harmon appealed to the Supreme Court, where the judgment was in all things affirmed. The case was remitted to the District Court of the Fourth Judicial District, and Harmon having died pending the appeal, leaving a will, in which Thomas Hayes and William Corbett were named as executors, and letters testamentary having been duly issued to them, they were made parties defendant in the room of their testator; but there was no revival in the names of his two children, Jacob and Mary Ann. This was in February, 1851, and on the 12th of March following an order or supplementary decree was entered directing that the property should be sold and the proceeds divided between the parties. The property was sold under this order on the 28th of March, 1851, and Elenora, then the wife of one Foley, became the purchaser and received a deed executed to her in the manner pointed out in the decree. Elenora died intestate in 1860. Her son, Jacob Harmon, Jr., died in the .same year leaving neither wife nor descendants, but the daughter, Mary Ann, survived her mother, and on the 21st day of May, 1861, she conveyed the premises in question to the plaintiff. Harmon by his will devised his estate in the land to his two children, two thirds to the son and one third to the daughter.

The relation of husband and wife, between Jacob and Elenora Harmon, was dissolved by the decree of October 24, 1849, and the property theretofore held by them in community was, by force of the decree that it should be equally divided, held by the n thereafter as tenants in common eo nomine. It may be conceded for the purposes of argument that the order made on the return of the case from the Supreme Court directing that the decree for an equal division of the property should be carried into effect by a sale and division of the proceeds, was irregular and void, still the rights settled by the judgment originally pronounced, were not and could not have been affected by an abortive order which bore upon nothing, by its terms, except the mode and manner in which those rights were to be met or provided for. If the order was a nullity, then the case is, as it would have been, if the order had not been made, and if it had not been made the parties would, without doubt, have stood as tenants in common on the face of the decree.

One undivided half of the premises descended to Mary Ann, the daughter of Mrs. Harmon, on the decease of the mother in 1860, and her title and right of entry passed to the plaintiff by the deed of May, 1861. The executor of a tenant in common has no right to exclude a surviving co-tenant from the common lands, and an action of ejectment can be maintained by either against intruders, or they may sue jointly at their election. (Acts 1857, p. 62.)

Judgment reversed and new trial ordered.