117 Cal. 673 | Cal. | 1897
This is an action to obtain partition of certain tracts of land called lots 5 and 6 of the Soquel Augmentation rancho. The plaintiffs are Jean F. Lacoste, Joseph Dazet, and Auguste F. Delmouly. Delmouly first appeared as a minor by his guardian, but he attained his majority shortly afterward, and was personally a plaintiff, at the time of the filing of the amended complaint. The defendants are Joseph Gr. Eastland and F. A. Hihn. It is averred in the complaint that Lacoste is the owner of an undivided one-eighth of the premises, Dazet the owner of an undivided fourth, Delmouly the owner of an undivided one-half, and that defendant Eastland is the owner of an undivided one-eighth, and that defendant Hihn owns or claims some interest unknown to plaintiffs in the said interest alleged to be owned by said defendant Eastland. The court found that neither of the plaintiffs nor defendant Eastland owned any interest in the premises, hut that all the land described in the complaint was owned by defendant Hihn in severalty. The plaintiffs
It is doubtful if defendant Hihn in his answer sets forth his interest, or any interest, in the premises in controversy in manner as is provided for in section 758 of the Code of Civil Procedure; but, as the case seems to have been tried upon the theory that he had so set up his interest, we will consider the case as if his answer was in that respect sufficient.
The court below found that respondent Hihn had acquired title to said lots 5 and 6 by virtue of sales made under certain executions issued in a certain action entitled Hihn v. Peck et als. This last-named case was an action brought by Hihn, the present respondent, for the partition of the Soquel Augmentation rancho. That action was commenced August 14, 1860, and the final decree of partition was rendered September 14, 1864. Maria Luisa Juan was a party defendant to that action, and, in the final decree of partition, she was awarded, in severalty, the said lots 5 and 6 involved in this present action. In the final decree there was no adjudication of costs, or any allusion to costs, except that included in the following sentence of the decree: “And that the parties to this suit have until the next term of this court to file their several bills of costs in this action, and have them apportioned among the parties hereto respectively.” At the next term of court, and on December 8, 1864, a judgment in favor of Hihn against the said Maria Luisa Juan for the sum of thirty-four dollars and fifty-six cents was rendered, that being her proportion of the costs due said Hihn. Another judgment for costs due the referees in the partition suit was also entered against the said Maria Luisa Juan for a small sum of money. Executions were issued upon these two judgments; Hihn redeemed from the sale made on the judgment in favor of the referee, and he became the purchaser on the sale upon the execution in his favor, and afterward received the sheriff’s deed of the interest of said Maria Luisa Juan. But long
The contention of respondent as to the question just-above stated was expressly determined against him by this court in the case of Hihn (the present respondent) v. Parkhurst et al, No. 1683. That case was not reported, but the transcript, briefs, and opinion of the court liavebeen referred to by counsel on both sides, and are to be-found in the clerk’s office and court library. In that-case the plaintiff undertook to assert title to the premises here in controversy by virtue of a purchase under the same executions relied on in the case at bar. The plaintiff there had recovered judgment for the premises involved in the present suit, but the judgment was reversed by this court. At the time of the pendency of the suit of Hihn v. Peck, and at the time the judgments were rendered in said case, section 308 of the practice act provided as follows: “The costs of partition, including fees of referees and other disbursements, shall be-paid by the parties respectively entitled to share in the land divided, in proportion to their respective interests-therein, and may be included and specified in the judgment. In that case they shall be a lien on the several shares, and the judgment may be enforced by execution against such shares, and against other property held by the respective parties.” In Hihn v. Parkhurst the court said:
In the conclusions of law of the court below, the judgment for Hihn is placed entirely upon his title under the sale upon said execution; but it is also found as a fact that Hihn acquired title to lot six by adverse possession, and respondent contends that the judgment should be affirmed upon that finding. This contention, however, cannot be sustained. The evidence that Hihn had possession of the lot by actual inclosure is exceedingly slight; but, in addition to that consideration, while the court finds that Hihn entered into the adverse possession in 1871, the time of the year not being given, and held it thereafter for six years, it is also found “that at some time during the year 1875 said occupation and possession were disturbed, but that said Hihn recovered possession of said lot 6 within five years after such disturbance.” This finding is not sufficient to support an averment of adverse possession during the statutory period of five years.
The court finds that all the facts stated in a certain amendment to the answer of defendant Hihn are true; and in that amendment it was averred that in 1876 Hihn commenced an action against one Bowker for the recovery of the possession of said lot 6; that in October, 1876, he recovered judgment against said Bowker for lot 6; that Bowker was in possession of said lot as tenant for the plaintiffs herein and one Gambert; that said lessors of Bowker were informed of the pendency of said suit and defended the same through said Bowker; and that therefore the judgment against Bowker is binding upon plaintiffs, and estops them from maintaining this suit as to lot 6. Without discussing other grounds upon which appellants contest the validity of this
Respondent makes some twenty distinct “ exceptions to the transcript he also moves to dismiss the appeal from the judgment upon several distinct grounds; and he also moves to dismiss the appeal from the order denying a new trial upon several distinct grounds. We do not deem it necessary to notice these várious points in detail; it would require a very lengthy opinion to do so, and it is sufficient to say that we do not think any of them tenable. An affidavit has been filed on the part of respondent to the effect that the defendant Eastland died a short time before the appeal was taken; and it is contended that he should have been served with notice of appeal. The appeal is from the judgment in favor of Hihn, and it is difficult to see how Eastland is interested in or would be affected by the appeal. Moreover, the transcript shows that the notice of appeal was served on the attorney of Eastland —that is, upon the attorney who signed Eastland’s original answer, and, although another attorney signed an amended answer, there was never any substitution of attorneys, and under section 763 of the Code of Civil Procedure the service was good, although Eastland at the time of the service was dead.
The judgment and order denying a new trial are reversed.
Temple, J., and Henshaw, J., concurred.
Hearing in Bank denied.