Chipman v. Hastings , 50 Cal. 310 ( 1875 )

By the Court:

The demurrer to the " equitable defense,” so called, was properly sustained.

First. If the defendant had a "perfect legal title,” he would have a defense to the ejectment at law, and need not go into equity to assert it. But the answer does not allege that Luis Peralta (from whom defendant deraigns), had “ a perfect legal title in fee,” but only that the Supreme Court of the United States had so decided in proceedings to obtain confirmation of the grant under the act of 1851, “ to ascertain and settle private land claims in California.” By that act the duty was not imposed on the Commission or the United States Courts to determine the precise character of the titles presented, but to determine whether claims should be declared valid; reference being had to “the treaty of Guadalupe Hidalgo, the law of nations, the laws, usages and customs of the government from which the claim was derived,” etc. (Section 11.)

The court below found that the plaintiff Caroline is the owner in fee of an undivided half of the premises as a tenant in common with persons other than the defendant, and held that, as such tenant in common, she was entitled to the possession of the whole of the premises as against all persons having no title, and that the defendant tortiously entered upon the premises and ousted her. Upon these facts the judgment was correctly entered below that she recover the whole of the premises. The complaint alleged that the plaintiffs were seized in fee of the whole of the premises; the answer, after stating that “the interest of the plaintiffs, if any they have,” * * * “is an undivided interest, and does not exceed an undivided four-fourteenths of said premises,” alleges that “ all the persons who, as tenants in common with plaintiff, owned or claimed to own the fee in the remaining undivided interest in said premises,” * * * “have been debarred of the possession of the premises by this defendant for more than five years,” etc. The answer presents no defense to the claim of the plaintiffs to recover the whole of the premises. Passing the fact that it does not directly allege that any person was a tenant in common with the plaintiff, it is apparent that even if the defendant, by reason of his adverse possession, had acquired such a title as against all the other tenants in common, as would defeat an action brought by such other tenants in common, the latter are not parties to this action. ' The question as to whether their title had been defeated by such an adverse possession on the part of the defendant, can be determined only in an action to which they are parties. When the plaintiffs here commenced their action they were entitled to recover against the defendant the whole of the premises, and it is not pretended that the defendant has, since_the bringing of the action, acquired the title of the others who were tenants in common with the plaintiffs, but only by reason of a continuous adverse possession the defendant has, as against the other tenants in common, acquired a title which would enable him to successfully resist an action brought by such other tenants—a question which, as already observed, cannot be properly litigated or determined in the absence of the other tenants in common.

Judgment and order affirmed as of November 10, 1873.