31 Cal. 418 | Cal. | 1866
This case was tried before me while Judge of the Twelfth District. The plaintiff introduced a deed of conveyance dated August 15th, 1851, from I. N. Thorne to Brower and Arnold, describing by metes and bounds a tract of land irregular in form, containing “ not less than thirteen, nor more than twenty acres.” The land in controversy is embraced within the lines described in the deed, but Market street crosses the tract and separates the portion in dispute from the remainder not embraced in the street. Within a week after the making of said conveyance, Brower entered upon the land described in the deed, erected a house, stable, barn and chicken house,
With reference to the point made, that the nonsuit may have been granted by the District Court on the ground of misjoinder of parties plaintiff, it is only necessary to observe, that a misjoinder of plaintiffs was not set up in the answer, and if any appeared in the evidence the ground of objection was waived under the statute. (Prac. Act, Secs. 44 and 45.)
We are of the opinion that the judgment should be reversed and a new trial had, and it is so ordered.
Mr. Chief Justice Currey expressed no opinion.