42 Cal. 452 | Cal. | 1871
The plaintiff recovered in the Court below, on the trial of the action, a small tract of land which is included in the southerly half of the Rancho “Rincon de los Esteros,” in Santa Clara County, of which southerly half she and others (among whom was Rafael Alviso), were formerly owners and tenants in common.
The defendant, Boots, had purchased of said Alviso, a defined portion of the lands of the estate in common, and entered into possession of the tract so purchased, occupying it according to its boundaries, as set forth in the conveyance
If respect be had to the agreement made between all the parties in interest—including the plaintiff and the defendant, Boots—it is obvious that the pretensions of the plaintiff in the premises cannot be maintained. For it is distinctly provided by the terms of that agreement, that the defendant, Boots,' is to hold in severalty the land which he had purchased of Alviso, and of which he was already in the possession. I am unable to see how this agreement subsequently became inoperative between the parties to it. The selection of the Commissioners—their steps taken to effect .a partition—their report to the parties in interest, describing, as they supposed, and as all parties supposed correctly describing, the tract already set off to Boots by the agreement itself; the adoption of that report by all parties, in the belief that it did accord with the agreement in the particular in question here; the conveyance thereupon made to "Wright in trust, and his subsequent conveyance in turn, made to Boots, of the tract, as was supposed, already designated by the agree
The judgment is reversed, and the cause remanded with directions to set aside the order dismissing the cross complaint, and for further proceedings not inconsistent with this opinion.