21 Cal. 346 | Cal. | 1863
Cope, J. concurring.
This is an action to recover the possession of certain real property situated within the city of San Francisco. The plaintiff is the widow of William Hart, late of said city, and claims the premises under two deeds executed to her during her coverture. If those deeds conveyed the premises by way of gift, she took them as her separate property, and is entitled to maintain the present action without reference to any administration upon her husband’s estate. If, on the other hand, the instruments were deeds of bargain and sale, as contended. by the appellant, the property belonged to the community existing between herself and husband, and upon his death she succeeded, as his survivor, to one undivided half interest therein, the remaining interest descending to his heirs. As tenant in common with the heirs, she could maintain the present action for the possession of the entire premises against the defendant, who is a mere intruder thereon. One tenant in common is entitled to the possession of the entire tract held in common, against all persons but his cotenants and parties claiming under them, and, as a consequence, can maintain against them an action for its recovery. (Stark v. Barrett, 15 Cal. 371; Touchard v. Crow, 20 Id. 162.) It does not appear that any administrator was ever appointed upon the estate of William Hart, deceased,'or that there were any debts against him which required the appointment of one for their settlement. The right to the possession, therefore, accompanied the title, which vested in the widow and heirs. In Meeks v. Hahn (20 Cal. 620) an administrator had been appointed, and in such case we held that the right to the possession of the real property, of which the intestate died seized, remained exclusively with the administrator until the estate had been settled, or the property had been distributed to the heirs by the decree of the Probate Court.
Judgment affirmed.