Lick v. O'Donnell , 3 Cal. 59 ( 1853 )

The opinion of the court was delivered by

Murray, Chief Justice.

This was an action, commenced under the statute concerning forcible entries and unlawful detainers, and transferred to the District Court, upon an affidavit of title. There is no evidence in the record showing that O’Donnell entered into possession under Lick.

The deed from Bujan to Ramirez, under whom Lick claims, calls for “one-half of my lot.” Parol evidence was admitted in the court below, to prove that, at the time Bujan executed said deed, he owned but one lot' in San Francisco, viz., lot 34. Admitting this deed is not void for uncertainty, it can only convey an undivided half of said lot. The exact portion conveyed is not set forth by any metes or bounds, by means of which it can be separated or distinguished from the remainder. It therefore follows that Ramirez took as tenant in common with Bujan, and Bujan having afterwards sold his remaining interest to O’Donnell, Lick, the present plaintiff, xvho claims under Ramirez from Bujan, and O’Donnell, hold as tenants in common, being seised for themselves, and for each other; consequently, this action cannot be maintained against O’Donnell.

Before the plaintiff can obtain any relief, he must resort to a court of equity, for a partition of the land in dispute.

Judgment reversed, with costs.