27 Cal. 329 | Cal. | 1865
This is an action for the partition of a certain lot and improvements in the City of San Francisco. The plaintiff obtained judgment and a decree directing the premises to be sold and the proceeds divided between the parties on the ground that a partition by metes and bounds could not be made without prejudice. The defendants appeal, and assign several errors which we will notice in the order in which they have been presented.
The action was commenced against Samuel De Uprey alone, who demurred to the complaint, and for cause of demurrer alleged that the same did not state facts sufficient to constitute a cause of action. The demurrer was overruled, which ruling constitutes the first error assigned.
The only ground urged in support of the demurrer is that the complaint contents itself with the general allegation that the premises cannot be divided by metes and bounds without prejudice and does not state the facts showing why such a partition could not be made. A complete answer to this is found in the fact that the manner in which the partition is to be made constitutes no part of the cause of action, but is merely a part of the relief. While it is proper and perhaps advisable to ask for a particular mode of partition—there being two provided by the statute—and to that end allege the facts upon which the plaintiff relies for the particular mode which he seeks; yet this is not indispensable, and a complaint which is silent upon the subject is good. No facts need be stated in the complaint except such as are found enumerated in the two hundred and sixty-fourth section, which provides for the cause of action in question and defines the facts upon which it rests; and a specification of the interest of each party interested in the land, so far as known to the plaintiff, as provided in section two hundred and sixty-five. If these sections left the question in doubt, such doubt is entirely removed by the two hundred and seventy-fifth section, which provides that: “ If it be alleged in the complaint, and be established
After the demurrer to the complaint was -overruled the plaintiff, upon affidavit and notice, mbved the Court for leave to bring in the wife of the defendant by a supplemental complaint. The motion was allowed by the Court against the exception of the defendant, and it is next contended that this order of the Court was erroneous.
We cannot but regard this point as frivolous. Mary Ann De Uprey, as appears by her own answer, not only claimed a homestead right to the premises, but claimed that the entire legal estate was in her, and the Court found that the legal title to an undivided half was in her. She was, therefore, not only a proper party, but a necessary party to the complete determination of the case. All persons having or claiming any interest in the land are not only proper but necessary parties to a suit for partition; and it was not only proper for the Court to allow the motion in question, but it would have been
After the amended and supplemental complaint was filed the defendants separately demurred upon the grounds following: First—Misjoinder of parties defendant, because Mary Ann De Uprey was improperly joined. Second—Because
several causes of action had been improperly united. Third— Because the complaint did not state .facts sufficient.
The demurrers were overruled, which ruling constitutes the third error assigned.
These demurrers were not only frivolous but, under the circumstances of the case, impertinent. The Court had already decided that Mary Ann was a proper party and therefore making her such could not result in a misjoinder. The Court had also decided that the original complaint stated a cause of action and it is clear that it, together with the amended and supplemental, does not state less facts than at first. And so far as the second ground alleged is concerned we cannot perceive that the demurrer has even a respectable pretext to stand upon. It is obvious upon inspection that there is but one cause of action stated in the complaint, and but one kind of relief sought.
This case was certainly contested with a pertinacity worthy of a better cause. After all the demurrers, five in number, had been overruled and the defendants had both answered separately, denying all the allegations of the complaint, their counsel next..moved to dismiss the case upon the pleadings without any trial of the issues of fact thus joined between the parties. In view of the fact that the sufficiency of the complaint made by the plaintiff had undergone the test of five
But it is argued in support of the motion that the pleadings show no cause of action as against Samuel De Uprey, because he disclaimed any interest in the land. Such, however, does not appear to be the fact. His answer does not contain an absolute and unqualified disclaimer. Less than that the plaintiff was not bound to accept. He only disclaims all interest except such as he may have under the Homestead Law by virtue of the dedication of the land to homestead uses by himself and his wife. It may be that such interest did not amount to anything in law, but that was one of the questions which he had helped to make and which the plaintiff had a right to have determined and put to rest by the judgment of the Court. But be that as it may, he could not claim a dismissal of the action upon the ground of a disclaimer unless he made that disclaimer in absolute and unconditional terms. Instead of doing that he denied all the allegations of the complaint as to the plaintiff’s title, pleaded two statutes of limitations and averred title in his wife and claimed for himself a right of homestead in the premises, but disclaimed any further interest. It is a misnomer to call such an answer a disclaimer.
The issues made by the answer of Mary Ann De Uprey are:
First—Has the plaintiff any interest ?
Second—Has Samuel De Uprey any interest ?
Third—Is Mary Ann sole owner of the premises ?
Fourth—Has the plaintiff possession ?
Fifth—Has the plaintiff been in possession within five years ?
Sixth—Has she been in possession within four years ?
IVe are asked if the foregoing questions are such as are cognizable in an action for partition and it is argued that they are not, but are such questions as must be tried in an action of ejectment or to quiet title, if at all, and therefore this case ought to be dismissed on the pleadings without first ascertain
It is next insisted that the findings negative the averments of the complaint, and the doctrine that the allegata and the probata must correspond is invoked for the purpose of establishing an error in that respect. The complaint averred that Samuel De Uprey was the co-tenant of the plaintiff, and owned an undivided half of the premises, but upon the trial the Court found that this undivided half did not belong to Samuel but to Mary Ann, and for that reason we are asked to reverse the judgment. This is substantially the same question which we have already twice considered in a different form, and which seems to play the part of Banquo’s ghost in this judicial drama. We know of no rule of law which requires the Court, in an action of this kind, to find the facts as alleged or the contrary and not otherwise, nor any rule which cuts off the plaintiff’s
Ordered accordingly.