24 Cal. 260 | Cal. | 1864
Salmon sued Symonds and others, in ejectment, to recover the possession of a portion of the Rancho Roblar de la Miseria, situated in the County of Sonoma. In his complaint, he alleges that on the first day of January, 1863, he was “the • owner in fee simple and lawfully seized of” the tract of land described in the complaint, and says “that while he was so the owner and seized of said piece and parcel of land above described, to wit: on the day and year first aforesaid, the defendants unlawfully entered into and upon the same land and ousted the plaintiff therefrom,” and that the defendants still withhold the same, to his damage, etc., and he concludes with the usual prayer. The complaint was filed January 10th, 1863. The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. In two of the demurrers other grounds were assigned, but they are not well taken, and are not urged in this Court. The demurrers were sustained, with leave to the plaintiff to amend his complaint, “upon the payment of twenty dollars for each demurrer, within two days, under the rule;” and the plaintiff refusing to amend, final judgments were entered for the defendants for costs.
The plaintiff appeals, and relies for error upon the order sustaining the demurrer.
The defendants, in support of their demurrer, urge that the
It is usual to allege, in addition to the statement of seizin or ownership in fee at the time of the ouster, that the plaintiff was seized or the owner in fee at the commencement of the action; but this is not necessary. In Payne & Dewey v. Treadwell, 16 Cal. 242, the allegations that are necessary in a complaint in ejectment were fully considered by Mr. Chief Justice Field, who, in that case, rendered an elaborate opinion upon a review of the cases in this State and in New York; and after stating that it is the ultimate fact, not the prior or probative fact—or, in other words, the evidence—that must be alleged, he says : “It is sufficient, therefore, in a complaint in ejectment for the plaintiff to aver, in respect to his title, that he is seized of the premises, or of some estate therein, in fee, or for life, or for years, according to the fact.” A fee simple is an estate of perpetuity, a pure inheritance, clear of any qualification or condition.
The demurrer admits the seizure in fee at the time of the ouster, and being once admitted, it is presumed to continue until a disseizin is proved; and it being unnecessary to allege a presumption of law arising from that fact, the plaintiff is not required to aver that he still continues seized as the owner in fee.
It is therefore ordered that the judgments be reversed and the case remanded, with directions to the Court below to overrule the demurrers, with leave to the defendants to answer the complaint upon the terms prescribed by the rules of said Court.
Mr. Justice Curret, having been of counsel for Appellant, did not sit upon the trial of this case.
