Slattery v. Hall

43 Cal. 191 | Cal. | 1872

By the Court,

Wallace, J.:

The demurrer to the complaint was properly overruled; it was general—that the complaint did not state facts sufficient to constitute a cause of action. Under such a demurrer objection cannot be taken that the complaint is merely ambiguous. We think, too, that the nature of the trust, and the manner in which it was to be executed, sufficiently appears by the complaint.

The evident purpose of the parties was, that upon contributing .a proportionate share of the purchase money expended in acquiring the outstanding title to the general tract, each of the settlers was to receive a conveyance of the premises in his possession—and while the extent of these several possessions would generally be indicated by fences marking their respective limits, it was, nevertheless, the fact of actual possession of a particular tract, with or without a fence, which would entitle the possessor to receive a deed from the trustees.

Upon the question of possession involved between the plaintiff and the defendant, Sharon, the evidence was not only substantially conflicting, within the general rule, but pointedly and to an unusual degree contradictory.

Judgment and order affirmed.

Mr. Chief Justice Sprague did not participate in the foregoing decision.