101 P. 934 | Cal. Ct. App. | 1909
This is an action in partition. It is alleged in the complaint that Stefano Varni and the defendant Maria Varni are husband and wife, and that with money earned by him during their marriage she purchased an estate of inheritance to the extent of an undivided one-half interest in the land described in the complaint, and caused the legal title thereto to be conveyed to her, and that the same now stands of record in her name; that she is in possession thereof as trustee for him, and he is the equitable *306 owner thereof; that Antonio Devoto is the owner and holder of the other undivided one-half interest, and that plaintiff and the defendant Devoto are the only persons having any interest therein.
Both the defendants demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Based upon these demurrers a judgment of dismissal was entered, and from that judgment plaintiff prosecutes this appeal.
Plaintiff suggests that if, as an abstract legal proposition he is entitled to maintain this action, he should have been given an opportunity to amend the complaint. That is true. But if he desired to amend it he should have applied to the court for such permission, and taken an exception if permission had been denied. It is too late to make the point for the first time in this court when nothing appears in the record to show an abuse of discretion. (Code Civ. Proc., sec. 427;Buckley v. Howe,
In support of the judgment, defendants first claim that the plaintiff, being the holder of the equitable and not the legal title to the property, cannot maintain this action. But in this state it is held to the contrary. Section 752, Code of Civil Procedure, provides that where several cotenants are in possession of real property, and "one or more of them have an estate of inheritance," a suit in partition may be brought, and in the case of Watson v. Sutro,
Defendants next contend that as it appears from the complaint that plaintiff is not in possession of any of the land, this suit is not maintainable. The seisin of plaintiff's cotenant Devoto, unless adverse, is the seisin of the plaintiff; but assuming that the complaint shows that the possession *307
of Devoto is adverse and hostile to plaintiff, still the point has no force in this state. At the common law, and under some American statutes, if property be held adversely to the claimant, he must, before instituting partition proceedings, establish his right to the land by an action to recover possession. And the language of section 752, Code of Civil Procedure, standing alone, lends countenance to the argument that such is the law here. But section 759, Code of Civil Procedure, provides that "the rights of the several parties, plaintiff as well as defendant, may be put in issue, tried and determined in such an action." And the supreme court has held, resting its decision on this section, that a cotenant not in possession of the land may bring a partition suit against his cotenant whose possession is adverse and hostile; that a proceeding in partition is one in which the rights of all the parties may be fully inquired into and determined. (Martin v. Walker,
Under section
The judgment is reversed.
*308Cooper, P. J., and Hall, J., concurred.