155 P. 999 | Cal. | 1916
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *176 The action was for partition of lands. The Richmond Belt Railway had obtained from the East Shore Company, before the action was begun, a deed purporting to convey to it, in severalty and entirety, certain strips or parcels of the common land. The deed stated that the strips were conveyed "as and for a right of way" for a railroad "to have and to hold all and singular the said premises, right and privilege unto" the said grantee "so long as the same shall be used for railroad or terminal purposes." During the progress of the suit, and before the decision in the court below, some of the common owners made deeds purporting to convey to third persons, in severalty, the whole title to other specific parcels of the common land. After the evidence was closed and the cause was submitted the court, on motion of plaintiff, opened the case and allowed proof to be made of these conveyances. This was done over the objection of the appellant.
The court found as a fact that the land was susceptible of division between the common owners without material injury to their interests. Thereupon it made an interlocutory judgment of partition, declaring the interests of the respective *177 tenants in common, setting forth, also, the said several conveyances of entire parcels thereof to third persons and describing said parcels, and appointing three persons as referees to make the partition. With respect to the specific parcels conveyed in whole title, the judgment directed that each such parcel be charged against and deducted from the share of the common owner who made the conveyance, that such common owner should be allotted only the interest remaining in him after such deduction, and that each person so receiving a conveyance of a parcel in whole title should have such parcel set apart to him, provided the same could be done without material injury to the rights and interests of other tenants in common who did not join in such conveyance. From this interlocutory judgment the defendant, J. Goodwin Thompson, appeals.
Certain principles have been established in this state concerning the rights of the parties where one tenant in common has conveyed, in whole title, a part of the common land, which principles control the decision in this case. They are well stated in the following extracts from our decisions: "A suit in partition under our code is, in its nature and essence, equitable, and the court, in its decree, proceeding to do what is 'equitable, just, and proper,' will not only allot to a cotenant that part of the common land upon which he has valuable improvements, but will also set apart a specific tract to the share of a cotenant who has undertaken to convey the title in fee to such tract in severalty, so that the grantee may have that which is justly his, when such disposition of the land can be made 'without material injury to the rights and interests of the other cotenants!' " (Emeric v. Alvarado,
A large portion of the brief of the appellant is devoted to an endeavor to show errors with relation to the conveyances of special tracts located within the common land by tenants other than himself. With respect to all of these it need only be said that the appellant, since he did not join in the conveyances and since his share cannot be affected in any injurious manner by anything done under the decree with respect to these specific parcels, has no interest in the question, and the errors, if any, are immaterial to him and insufficient to authorize the reversal of the judgment, upon his appeal. This was decided in Gates v. Salmon,
The appellant objects to the action of the court in opening the case and permitting proof of some conveyances of special locations, which were made after the suit was begun and *179 which were not mentioned in any pleading on file. The same principle applies to this objection. None of these conveyances was made by the appellant, and as they involve only the relative rights of the grantees and grantors in the share set apart by the partition to the grantors and cannot, under the decree, in any respect injure the appellant, the ruling of the court thereon is one which he cannot question. It is immaterial to him whether the causes of action of these grantees, with respect to their respective grantors, existed when the action was begun or not. Perhaps if the procedure resorted to had resulted in a delay of the decision of the case which worked injury to the appellant in its practical operation, he might be allowed to make an objection, but no injury of this kind is suggested or claimed. The opening of the case caused a delay of only a few weeks, and it does not appear that the appellant was at all prejudiced thereby. In this behalf it is urged that the motion to reopen the case was made by the East Shore Company, originally one of the tenants in common, and he claims that by its conveyances it had parted with its entire interest. From this he argues that a motion made by one not having any interest should not have been entertained. But our code specially provides that where the right of action is transferred during the pendency of an action thereon, such action may be continued in the name of the original party, or in the name of the transferee, in the discretion of the court. (Code Civ. Proc., sec. 385.) It follows, therefore, that the East Shore Company had the authority to make the motion, if not in its own interest, then in the interest of its grantees. It may be added that the respondents dispute the statement that the East Shore Company had transferred its entire interest.
The court, among other things, made findings that certain of the grantees of specific parcels above referred to owned other lands contiguous to such specific parcels, not within the land to be partitioned, upon which contiguous tracts they had made valuable improvements, and that the special parcels conveyed by the tenants in common to them, respectively, were convenient to the enjoyment of the contiguous lands and for the use and protection thereof. The appellant claims that the evidence is insufficient to support these findings. We think this is an inquiry upon which we need not enter. There is nothing in the judgment that requires the referees *180 to consider these facts in making the partition. The facts are not mentioned in the judgment. They are wholly immaterial to the judgment and should not be considered by the referees. The grantee of each parcel is entitled to have the same set off to him out of the share of his grantor, if it can be done without injury to the other tenants in common. The fact that he owns contiguous land which will make his ownership of the specific parcel more advantageous to him cannot justify the allotment thereof to him, if to do so would in fact materially injure another tenant in common. If it does not injure such other tenant, then he has no reason to complain of such finding. In any event, the time for objection because of the consideration of such facts, if they are considered, is when the report of the referees is made to the court. It will not be presumed that the referees will take such fact into consideration to the injury of any other tenant in common, in view of the declaration in the judgment that no partition respecting such special parcels can be made to the injury of another tenant in common.
The remaining contention of the appellant is that the finding of the court that the land is susceptible of partition without prejudice to the owners is not supported by the evidence. The provision of the code on the subject is that "if it appears by the evidence, whether alleged in the complaint or not, that the property or any part of it is so situated that partition cannot be made without great prejudice to the owners, the court may order the sale thereof; otherwise, upon the requisite proofs being made, it must order a partition according to the respective rights of the parties as ascertained by the court." (Code Civ. Proc., sec. 763.) The presumption is that land held in common tenancy can be equitably divided between the parties by allotting to each a tract in severalty, equal to his interest in the whole, measured by value. It is only where the contrary "appears by the evidence" that a sale may be ordered. Hence, a tenant who, upon appeal, contends for a sale, instead of a partition as ordered by the court below, must show that it appears by the evidence that a partition would prejudice the owners. The burden of proof to show such prejudice rests on him. This was expressly decided in Mitchell v. Cline,
The interlocutory judgment is affirmed.
Concurrence Opinion
Hearing in Bank denied. *182
