Throckmorton v. Burr

5 Cal. 400 | Cal. | 1855

Heydenfeldt, J., delivered the opinion of the Court.

Murray, C. J., and Bryan, J., concurred.

From the character of the estate in common, tenants in common cannot join in an action for the. recovery of the estate. The interest of each is separate and distinct. The subject of the action in such case, would be the whole estate, and it cannot be said that either of the parties is interested in the whole estate, but only in an undivided moiety. This is all that either one can recover, and. consequently all that he should be allowed to sue for.

This subject was examined to some extent by this Court in the case of Johnson v. Sepulbeda, 5 Cal., 149, and although it was unnecessary in that case to go as far as this case requires, yet the reasoning and authorities there relied on, fully sustain the view here taken.

Judgment reversed.