Bollo v. Navarro

33 Cal. 459 | Cal. | 1867

Lead Opinion

By the Court, Sanderson, J.:

The point that the Court below could not try title in this action is answered by the cases of De Uprey v. De Uprey, 27 Cal. 329, and Morenhout v. Higuera, 32 Cal. 289.

Whether Alcalde grants were required to be in writing it *466is unnecessary to consider. The plaintiff failed to show any grant in writing to Carmen Navarro, and if his counsel is correct in his point, that Alcalde grants could be made only by an instrument in writing, it follows that Carmen, under whom he claims, had no title, or at least only such as may be founded upon possession only. We do not consider the proceedings of the Ayuntamiento upon the petitions of Manuel Valencia and another at its sessions in 1846 and 1847, as amounting to a grant by that body to Carmen Navarro. The question before the Ayuntamiento was whether the lot should be granted, not to Carmen Navarro, but to another party, and they resolved not to grant it to that party, but to return to him his petition and leave Carmen undisturbed in the possession, for certain reasons therein set forth. Instead of amounting to a grant to Carmen, those proceedings show that she had no title, for it is therein so expressly recited.

The title, then, as between Carmen and Dolores, rests upon the parol grant of the Alcalde Lugo and the delivery by him of the possession. Whether that amounted to a good title or not is of no consequence in this action. If it is good for one party it is good for the other. We may, therefore, assume it to be good. Then the only question is, was it made to Carmen or Dolores ? If the latter, the plaintiff has no interest in the lot. The referee found that Lugo granted or gave the lot to Dolores, and delivered to her the possession, and it is sufficient to say that we are entirely satisfied with his finding.

It is not necessary to specially notice the plaintiff’s objections to certain portions of the defendant’s testimony. The plaintiff claims under Carmen, and the admissions made by her in her lifetime while living upon the lot, to the effect that it belonged to or was in the possession of Dolores, was competent evidence against him.

Judgment and order affirmed.

Mr. Justice Rhodes did not express an opinion.





Rehearing

By the Court, Sanderson, J., on petition for rehearing:

In his petition for a rehearing counsel complains that we have assumed, rather than decided, that an “ outstanding-title” may he tried in an action for partition. On that head it is sufficient to say that we have assumed nothing of the kind. No question as to an “ outstanding title” is made in the case. As to title the only question presented is whether, at the time of the death of Carmen, she, or Dolores, was the owner of the lot. If Carmen was the owner, then the plaintiff has become a tenant in common with Dolores. If Dolores was the owner, then the plaintiff has acquired no title and is not a tenant in common with Dolores, and is, therefore, not entitled to a partition. That such a question may be tried in an action for partition may have been assumed rather than decided, for, in common with other Courts, we sometimes assume what is too obvious for argument.

Whether the plaintiff and defendant are tenants in common is the first issue to be tried, if made, in an action of this character. If the Court finds the issue in favor of the defendant, the action is at an end. The idea that a party sued in partition cannot deny that he is a tenant in common and set up that he is the sole owner of the premises, is simply preposterous. There never has been a time when he could not. Under the old system, if this was done, the partition was stayed, and the parties were sent to a Court of law to try the issue, for the simple reason that a Court of equity could not try it. If the Court of law found the issue in favor of the plaintiff, the Court of Chancery then proceeded with the partition; if for the defendant, the hill was dismissed. But the reason for this practice does not exist under our system. On the contrary, we have hut one Court, which has in the premises all the powers of both law and equity Courts uuder the old system; and there is, therefore, in such a case no necessity for two actions, one at law and the other in equity, as under the former system. On the contrary, the Court proceeds in one action, and first tries *468and determines all the questions at law; and if the decision is favorable to the plaintiff, then takes up and disposes of the equitable part of the case ; if for the defendant, the partition is denied without any further action. This was expressly decided in De Uprey v. De Uprey, and reaffirmed in Morenhout v. Higuera ; but as counsel is disposed not to so understand those cases, we have thought proper again to declare such to be the rulé.

Upon the other points we have no occasion to add to our former opinion.

Rehearing denied.

Neither Mr. Justice Rhodes nor Mr. Justice Shatter expressed an opinion.