Reed v. Calderwood
32 Cal. 109
Cal.
1867
Check Treatment
By the Court, Shafter, J.:

Action to quiet title under the two hundred and fifty-fourth section of the Practice Act. The case was tried by the Court. Finding and judgment for plaintiff. The appeal is from the judgment and order denying defendant a new trial.

The allegation in the complaint that the plaintiffs own the premises in fee simple absolute, is not denied, and no evidence was introduced tending to prove that the lot belonged to the defendant, as averred in his special answer.

The averment of the plaintiffs that they were in possession at the commencement of the action, is not effectually denied, under the decision (Fish v. Redington, 31 Cal. 185.) The possession so admitted, was not avoided by the special answer charging that the plaintiffs obtained possession by collusion with defendant’s tenant. Possession was alleged for the purpose, primarily, of showing, not that the plaintiffs owned the land, but that they stood in that relation to the land on which the right to the particular remedy is by statute made to depend. To that intent it is a matter of no moment, how the possession was acquired. (Depuy v. Williams, 26 Cal. 310.) It may be true, inasmuch as the admission of the fact of possession is coupled with a statement that plaintiffs got in by a *111collusive arrangement with defendant’s tenant, that the answer cannot be treated as an admission that plaintiffs were in possession rightfully, but that the possession was by right is involved in the other admission that the plaintiffs own the lot in fee simple.

It cannot be claimed that the plaintiffs are estopped from denying the defendant’s title on the ground that they came into possession by the leave of defendant’s tenant, admitting such to have been the fact; for the admission that the plaintiffs own in fee simple occurs, in effect, in the very plea in which the estoppel is asserted.

It may be admitted that the plaintiffs were not in strictness entitled to a decree enjoining the defendant from making any further contest on the plaintiffs’ title—whether judicially or otherwise; still the error must he disregarded, for it cannot affect any substantial right of the party. The- decree would have been a bar to subsequent litigation on the same subject matter, if the injunction clause had been omitted; and that clause may be of positive service in preventing the bringing of suits by the defendant, which if brought would be sure to fail. The defendant, however, is mistaken in supposing .that the injunction will preclude him from availing himself of an after acquired title.

Judgment affirmed.