32 Cal. 425 | Cal. | 1867
Lead Opinion
Ejectment for land situate in the County of Napa.
Mrs. B.ruck made title to the demanded premises, as devisee of her father—who held by grant from the Mexican Government.
The devise was as follows : “ To my daughter Lolita [Mrs. Bruck] the flour mill with the land pertaining thereto, a half league, more or less.” The will was made in 1849.
It appeared in evidence that the grant to the testator was of land situate in Napa Valley, and that the Napa River runs through the grant from north to south. That the testator, some years before his death, conveyed a piece off the northerly end of the grant to one Kilburn, and another piece, toward the southerly end, to one Kellogg—leaving a section, intermediate the two parcels, lying on both sides of the river, and extending to the eastern and western boundaries of the grant. This section contained one thousand four hundred and thirty-
First—That the mill devised was the flour mill referred to, is not disputed. The testator owned no other; and as there was no evidence tending to establish any connection between the mill and any land outside of the section named, it must be understood that the testator, in the use of the word “ pertains,” referred to the land belonging to him lying between the walls of the mill and the outer limits of the unsold section on which the mill stood. This follows of necessity. No part of that section bore any relation to the mill that was not borne, both in kind and degree, by every other part of it. The only relations which the different portions of the section beyond the walls of the mill, bore to each other, lay in the fact that they were parts of a common whole; and.the relation so existing between them—inter sese—was the relation that existed between them in mass, and that particular part of the section on which the mill stood. The principle is this : If the central or any other section of an entire and homogeneous thing be either devised or granted, together with “ all ” the other sections “pertaining” thereto," the entire thing would pass, as matter of law. In such case the whole thing would be granted by a virtual enumeration of its parts.
Second—But the question is presented in the record under another aspect. The case was tried upon the theory that the lands “pertaining to the mill” were, according to the intention of the testator, the lands which were known to him, and through him to others, as thé “ mill tract.” The evidence of the plaintiffs tended to prove that the testator, in many
Third—The Court told the jury that “ the plaintiffs could not recover unless they established the lines and boundaries of the land devised with as much certainty as though they were contained in the deed.” The charge was given upon the mistaken hypothesis before remarked upon, viz: that the witnesses contradicted each other, and the instruction was therefore properly excepted to by the plaintiffs.
Judgment reversed and new trial ordered.
Rehearing
In the opinion delivered in this action we do not hold that any part of the mill tract passed to the devisee which the devisor conveyed or contracted to convey in his lifetime. The will of course operated only upon so much of the mill tract as legally and equitably belonged to Dr. Bale at the time of his death.
Rehearing denied.