14 Cal. 208 | Cal. | 1859
delivered the opinion of the Court—Cope, J. concurring. •
The bill charges that Maydwell and Brush were in partnership in a ranch and hotel, and in the business of keeping and conducting the same. That the ranch was taken up in the name of Maydwell, and the claim so recorded under the Act rel
From this statement, we do not see any necessity of going into a Court of Equity. If the plaintiff be entitled to this moiety of the ranch by express agreement with Maydwell, and is entitled to recover at all, we do not see why he cannot recover at law. The legal title seems to be in the government ; the claim of these parties was only originally to the possession; this possession, it is true, we regard as property; but it is not necessary to go into equity to protect the plaintiff’s right. The transfer to him by Maydwell, and the written acknowledgment of his right by Maydwell, are sufficient to maintain a possessory action against Maydwell, or any one claiming through him, with notice of the plaintiff’s title.
The bill, too, avers that Myers went into possession under contract with plaintiff. If this be the fact, it would estop him in an action at law from disputing the title of the plaintiff.
"We do not see, under the circumstances, that the claim of the plaintiff is at all dependent upon the settlement of the.partnership account.
The sale by Maydwell to the plaintiff of the property, divested it of its character of partnership, or common property, if it ever were such, and the reconveyance by Brush of one-half left the parties as ordinary tenants in common of the ranch, as if this ranch had been partnership property and been divided. The sale by Maydwell passed no title to his vendee, if the vendee had notice, as the bill alleges.
Ordered accordingly.