86 Cal. 500 | Cal. | 1890
Dissenting Opinion
— I dissent. The deed executed in quadruplicate in April, 1870, by Watson, Sullivan, and the Davis heirs contains a distinct declaration, —a solemn admission by Watson that Sullivan was at that time the owner of the equitable interest here in controversy. The conduct of Watson and of all parties to these transactions was for many years consistent with that declaration, and inconsistent with any serious claim of ownership on the part of Watson. The holder of the legal title, with knowledge of that admission, bought in the equity and transferred both to Sutro.
I do not think that Watson should now be heard to deny the truth of a solemn admission upon which others have acted.
Thornton, J.— On the twelfth day of January, 1870, John H. Baird, the plaintiff, W. C. Watson, E. L. Sullivan, and nine other persons, tenants in common of the tract hereinafter mentioned, conveyed to David W. Connolly, by deed bearing date the day just named, a certain parcel of land situate in the city and county of San Francisco, known as the Byfield tract. The consideration named in the deed was one dollar. It was acknowledged and recorded on the 29th of the month and year above mentioned. Subsequently, other deeds were executed to Connolly of interests in this tract, which, as they do not figure in the controversy, need not be mentioned further. The Byfield tract is in that portion of the city and county of San Francisco affected by the provisions of the act of Congress of March 8, 1866, entitled “An act to quiet the title to certain lands within the corporate limits of the city of San Francisco.”
On the 25th of January 1870, Connolly executed to the parties above mentioned and referred to, an instrument in writing, reciting the conveyance to him by the parties (naming them) of their several interests in the Byfield tract, and further reciting that such conveyance was made for the purpose of facilitating the settlement of the title to the same by deeding to the city and county of San Francisco the reservations made for public purposes by the outside land committee of the board of supervisors of the city and county, and for the procurement of the title of the city and county to the said tract to him.
This instrument then sets forth that Connolly binds himself, his heirs and assigns, as soon as the objects above stated shall have been accomplished, to reconvey to his grantors their respective proportions of the tract as shall remain in it after deducting the reservations made by the committee. This instrument, called the Connolly declaration of trust, was acknowledged on the
The above instrument clearly sets forth a trust in which Connolly was the trustee, and the other persons named in it were the cestuis que trusten. On the procurement of the title of the city, the tract so acquired was to be conveyed to the proper claimants, as above set forth. Connolly was to look to the matter referred to for all the beneficiaries of the trust, adjust all matters necessary to procure the title from the city and county of the lands referred to, execute the necessary conveyances to the city of the portions reserved, and then to reconvey, as above stated. Of these beneficiaries the plaintiff, Watson, was one expressly named in the instrument executed by Connolly on the twenty-fifth day of January, 1870.
Deeds were subsequently executed to Connolly by the city and county of the land to which he undertook to procure title. These deeds were three in number, executed in the months of March, April, and September, 1870, and were recorded on the day of their date. The lands thus conveyed to Connolly include the parcel in controversy here.
Afterward, on the second day of December, 1871, Connolly executed to John H. Baird, who was one of his grantors, and one of the beneficiaries under his declaration of trust, a deed absolute in form, and purporting to convey to the grantee the Byfield tract. This deed was recorded on the twentieth day of August, 1872.
It is found as a fact that the deed just above mentioned was executed by Connolly and accepted by Baird without consideration, and subject to and in furtherance of the trusts upon which Connolly was then holding title to the premises, and with full knowledge of the trusts under which Connolly held the property which he conveyed to him. In fact, it seems that Baird was but a substituted trustee, substituted in place of Connolly, and,
It should be remarked here that this tract was supposed to contain 160 acres, and the proportion of each was designated by a fraction, in which the supposed number of acres was taken as the denominator. Among the names of the owners or beneficiaries in Baird’s declaration of trust, the plaintiff’s name does not appear. E. L. Sullivan’s name appears in it as the owner of fifteen one hundred and sixtieths, as above stated. The controversy in regard to the land involved herein turns, in great part, on the disappearance of Watson’s name from the list of beneficiaries, and the appearance of Sullivan’s name, for a share or proportion, which seems to include both his share and that of Watson. Watson’s share had been conveyed to him by Sullivan on the tenth day of December, 1862, which specified as the portion conveyed five one hundred and sixtieths of the Byfield tract. This conveyance purported to be for value, and was properly recorded on the fourth day of December, 1865.
All the parties to the Connolly deed claimed under mesne conveyance from one John K. Moore, which conveyance had been properly recorded prior to the date of the deed to Connolly. The findings show that at the date of the deed just mentioned to Connolly, the twelfth
On the first day of February, 1879, Sullivan executed to Baird a deed purporting to be in consideration of ten thousand dollars, which conveyed to Baird certain lands by the following description: "All the interests of the first party in and to the tract of land situate in the city and county of San Francisco, state of California, known as the Byfield tract, the interest of said first party in said tract of land being about thirteen acres, more or less,” which deed was duly acknowledged on the 18th of February, 1879, and on the same day recorded in the proper office of the city and county of San Francisco.
It is found that at the date of this deed Sullivan had no greater interests than he had on the 12th of January, 1870, the date of the deed to Connolly of his ten undivided one-hundred-and-sixtieth parts. In June, 1880, the defendant Sutro purchased of Baird the interest which Baird claimed to own in the Byfield tract, which Baird represented was fifty-five one hundred and sixtieths of the tract. This quantity was made up of his (Baird’s) forty one hundred and sixtieths, and the fifteen one hundred and sixtieths, which he claimed had been sold and conveyed to him by Sullivan. This fifteen one hundred and sixtieths was represented by Baird to Sutro as embracing the five one hundred and sixtieths which Sullivan in 1862 had conveyed to Watson. The negotiation for the purchase by Sutro commenced in June, 1880, and was consummated by a deed from Baird to him bearing date the 26th of that month. This deed purported to convey fifteen one hundred and sixtieths of
This action was brought by the plaintiff to charge Sutro, as purchaser, with notice of his interest, five one • hundred and sixtieths, in the tract above mentioned, as described in the complaint, and for a partition. The court below found that Sutro was a purchaser with notice of Watson’s equitable rights, and charged him as a trustee for Watson, to the extent above mentioned.
The question to be here passed on relates to the sufficiency of the evidence to justify the above finding of the court.
Pending the negotiations between Sutro and Baird for the purchase of this land, Sutro employed able and distinguished attorneys to examine and pass on the asserted title of Baird. These attorneys did examine and pass on that title, and on their representation Sutro paid the purchase-money and took a conveyance from Baird. Baird and the defendant had notice, by the record, of the deed from Sullivan to Watson conveying to the latter his interest in the Byfield tract. This deed had been regularly recorded in the proper office in December, 1865. He also had like notice of the deed of the 12th of January, 1870, made to Connolly by his tenants in common, of whom Watson was one, which was recorded on the 29th of January, 1870. The registry of deeds then showed that the title had passed from Watson to Connolly. The registry further showed that Connolly
In the progress of the examination, the declarations of trust executed by Connolly and Baird, which had never been recorded, were furnished to Sutro’s attorneys. The Connolly declaration showed plainly that he was trustee for Watson, as well as for Sullivan. The extent of Watson’s interest did not appear on this paper, nor did the amount of the interest held by either of the beneficiaries. The Baird declaration did not mention Watson’s interest. It showed the interests of the other owners, but Watson’s was omitted. The above attracted the attention of the attorneys, and their inquiry was at once directed to this interest to ascertain what had become of it, whether it had been acquired by some other of the co-owners, and if so, by whom. In pursuing their investigation in regard to this interest, application was made to Baird and Sullivan. One of the learned gentlemen called upon Baird. He gives in his testimony a full account of the interviews with both Baird and Sullivan. After stating, in regard to his investigation of the title, that he had found the Connolly declaration of trust, the deed of Connolly to Baird conveying the property known as the Byfield tract, and the Baird declaration of trust mentioning the proportions of the several co-owners, amongst others Sullivan’s, stating his interest at fifteen one hundred and sixtieths, omitting Watson’s altogether, the proportions named making up 160 acres,he proceeds: “I proceeded to inquire what became of Watson’s interest, and why he was left out. I called upon Baird, and he said: ‘Why, that is all right. That declaration of trust embraces the parties who are now in interest.’ I said: ‘I do not see what has become of Watson there.’ He said: ‘ There is a family arrangement between Watson and Sullivan.’ He then told me that
The attorney then went to see Sullivan, and told him his errand; “ that Baird was about conveying property, and I find that he (Sullivan) had conveyed fifteen one hundred and sixtieths of it, and I wanted to know where Baird got his title, and he told me there was an arrangement between him and Watson in respect to this little interest which he had. And he mentioned, also, that he had spent, or that Watson had cost him — I think that was his expression — a good deal of money, and that he had an arrangement by which he could take this property, treat it as his own, sell it, and dispose of it in any way he chose. I asked him if that was in writing. ‘Yes,’ he said; that it was all in writing. He says: ‘Hadn’t you seen it? ’ Isay,‘No’; and he says:‘It is on record.’ I said: ‘No, it is not; it is not in my abstract at all.’ He said there were several copies of it. ‘ I thought it was recorded.’ Well, I asked him if he had a copy. He said, ‘Yes.’ I asked him if he would not find out where he could get it. He said he would look it up, and asked me to come the next day, or, he said, ‘ I ’ll call on you.’ I said I wished him to call on me at the office, which he did, and then he had a paper, which I have identified on the stand about as nearly as I can. I don’t know who had charge of Sullivan’s papers; since his death I asked Watson, and he said he finds it very
This witness afterward testified that “ Sullivan said, also, that the conveyance to Watson did not cost him a cent; that it was a gift, but in consequence of the cost which he had been put to on Watson’s account he intended this to be used for the benefit of the family, and the instrument between them evinced his right to use it.”
On the trial, the original of an instrument in writing, and executed by Sullivan as a party of the first part, and George J. Bucknall, his wife, William C. Watson, the plaintiff, Elizabeth Anne, his wife, and John C. Davis, parties of the second part, was produced by Watson and was put in evidence by Sutro.
This paper, in our judgment, was the paper a copy of which was shown by Sullivan to Sutro’s attorney at the interview between Sullivan and the attorney, an account of which is given above. We think it was sufficiently identified by the attorney when giving his testimony. Much stress is laid on this paper by counsel for appellant as bearing on the question of notice, and it becomes necessary to examine and consider it.
It bears date on the twenty-fifth day of April, 1870, soon after the execution of the deed to Connolly and his trust declaration, and was executed in quadruplicate. Watson had a copy.
This paper, after stating the parties of the first and second parts, as above set forth, proceeds to witness and declare that whereas, the parties of the second part have by an indenture executed before this paper, and bearing
The instrument then proceeds to declare that the party of the first part (Sullivan) has acquired during the period of said administration, of the city and county of San Francisco, certain other valuable real estate, described hereinafter, the legal and equitable title of which is now in Sullivan, the party of the first part.
And all parties hereto have agreed that all the real estate last above mentioned, so acquired as above stated, and all the said fifty-vara lots, shall be deemed to be the property of Sullivan, and of the said Mary, Elizabeth, and John G. Davis, each to have an undivided fourth part thereof, subject to the indebtedness in like propor
The instrument then further states and witnesses, and the parties do thereby declare, that Sullivan “holds the following described property in trust, and to administer, bargain, sell, convey, mortgage, or otherwise encumber and dispose of the same, or any estate or interest therein, and to discharge, out of the rents, issues, and profits, or other proceeds thereof, the aforesaid indebtedness, and all encumbrances now or hereafter to be a lien on the same, and afterward to make partition or division among all the parties to these presents of all and singular- the remainder of said property,-—that is to say, to each of the said Mary Eliza Bucknall, Elizabeth Anne Watson, and John C. Davis, one fourth in severalty of said remainder, reserving to himself the other fourth, likewise in severalty; and it is expressly declared that all authority and power for the execution of all and singular the said trusts, and for the purpose of doing and performing all of the acts and things necessary for the carrying out of the same, is hereby delegated to the said party of the first part by the parties of the second part, and that the authority and power so conferred and delegated, coupled as it is with an interest, is irrevocable (a general power of attorney irrevocable), so far as the property hereinafter described is concerned, and bearing even date herewith, has been
The instrument then sets forth by description the real property “so as aforesaid held in trust by the party of the first part.”
The three fifty-vara lots and the several parcels of outside lands are described, and among these a parcel of outside lands is described in the following words: “An interest in another tract of outside lands, known by the name of the Byfield tract, amounting to fifteen acres or thereabouts.” This instrument was executed in quadruplicate, and was under seal. It is clearly a deed of conveyance.
The foregoing sets forth all the facts ascertained by the learned gentlemen retained by Sutro in their investigation of the title which the latter desired to acquire by his purchase from Baird. It appears, and is found as a fact, that Sutro had no actual knowledge of any of the foregoing facts on which the question of notice turns. The only notice which he had was that which the law attributes to him from its having been brought to the knowledge of his attorneys. Knowledge by notice to attorney or counsel or agent acquired during the negotiations for a purchase is constructive notice to their principal. If it were otherwise, it would cause great inconvenience, and notice would be avoided in every case by employing agents. (See cases cited in 2 Lead. Cas. Eq., pt. 1, pp. 133, 134.) That notice to an agent is notice to the principal has been held in this state ever since Connelly v. Peck, decided in 1856, and reported in 6 Cal. 348; followed in May v. Morrell, 12 Cal. 91; Stanley v. Green, 12 Cal. 148; Hunter v. Watson, 12 Cal. 363; 73 Am. Dec. 543. (See other cases referred to in Gear’s California Index-Digest, 97.) No
Now, if Baird was an innocent purchaser, Sutro, though he had notice, could not be charged. Equity acts on and charges a person by reason of the obliga
Was Baird, then, an innocent purchaser? We think it is plain he was not, unless he was made so by the provisions of the instrument of the 25th of April, 1870, above fully set forth. It is too plain to admit of argument that he bought with notice of the equity of Watson. He had at least constructive notice, imparted by the record of Watson’s deed from Sullivan, executed in 1862, and regularly recorded in December, 1865. When he took the deed from Connolly, in 1871, he must be held to have been aware of the conditions of the title which Connolly had. Connolly was a trustee, and Baird was nothing more when he received the conveyance from the former. As a matter of ordinary prudence he would have ascertained from Connolly for whom he was trustee, and to whom, as Connolly’s grantee, he assumed that relation. He was tenant in common with others. This he must have known. It would be inconceivable to conclude that Baird did not know the purpose of the transaction with Connolly, and that purpose as set forth in a paper executed by Connolly for the benefit of his (Connolly’s) grantees, of which Baird was one. Baird was co-tenant with the other grantors, and the transaction with Connolly was made in the interest of himself and his co-tenants. In the transaction, Connolly became a trustee to carry out a desired and declared purpose and intent. It will be the height of fatuity to conclude and hold, when Connolly conveyed to Baird, and put him in his place as trustee, that he did not tell Baird, and Baird did not seek to know for whom he was to undertake the duties and responsibilities of a trustee. If he did not
Reference is here made to the conversation with Baird in relation to the declaration of trust, and that Sullivan was the true party in interest when the declaration of trust was made, in consequence of a family arrangement, to which Sullivan and Watson, who was related to Sullivan by marriage, were parties. In any event, Baird, when he assumed the position of trustee, instead of Connolly, was bound to know, as a matter of law, that he was trustee for the same parties as Connolly, and that he could not displace one beneficiary and substitute another in his place, by ignoring the right of the former and recognizing another as holding his interest. Neither Sullivan nor Baird, nor both together, could so deal with Watson’s equitable title as to acquire it from him and transfer it to another person without Watson’s consent. That Watson could have compelled Baird to convey to him would not have been questioned, and it would have been no defense to Baird that he had recognized Sullivan as the owner of Watson’s interest, unless Baird was protected by the instrument above particularly set forth, executed by Watson and wife, with others, to Sullivan. On this depends the fact, too, whether Sutro is protected; for
Now, as to this Byfield tract, in which Watson was only individually concerned (as to other property, it is clear it was owned by his wife), the words employed confine it to such interest, the legal title to which was, at the date of the instrument, in Sullivan. The paper sets forth that Sullivan (see the language fully set forth above), during his administration of the property mentioned and described in it, had acquired in the city and county of San Francisco certain other real estate therein described, the legal and equitable title to which was then in him. The fair construction of these words is, that they include the real property described in it, in which he held the legal and equitable title, and exclude that in which he did not hold such title. This designates the property with particularity to which reference is made.
As seen above, Sullivan held the equitable title, when this instrument was executed, only to ten one hundred and sixtieths of the Byfield tract. Connolly held by conveyance from him to this extent. By conveyance previous to the conveyance to Connolly, he had transferred to other persons (Watson and another) all except the ten one hundred and sixtieths. He held this interest
A clear and distinct limitation in ^ grant is not controlled by other words less clear and distinct. (Civ. Code, sec. 1067.)
Again, the circumstances in which the parties stood, and their knowledge, at the time, of the state of the title, should be considered in arriving at their intent. When he affixed his signature and seal to this instrument, Watson knew that he had never parted with his equitable title, and Sullivan must be held to have known the same thing. Connolly was then Watson’s trustee. Watson was cognizant that his legal title was then in his own selected trustee, and it should be noted that this paper was executed long before the deed was made by Connolly to Baird, or the execution of Baird’s declaration of trust.
A purchaser must be held to have notice of everything which appears on the face of the deeds under which he buys. He has constructive notice of what is contained in them, or which is a necessary inference from what is contained in them. (2 Lead. Cas. Eq., pt. 2, p. 125.) It cannot be limited to the recorded deeds and instruments, for notice is equivalent to registration. (2 Lead. Cas. Eq., pt. 1, pp. 37, 98,149, 213, 299.) Surely no such limit can exist where the deeds and documents relating to the title are shown him. The recitals in a deed, however, to bind the- conscience of a purchaser must be sufficiently clear and certain to convey the requisite
Here the deed refers to property to which, at the time, Sullivan had the legal and equitable title. This is sufficiently certain. A purchaser was certainly put on inquiry when he and others executed the deed of the 25th of April. And on seeking information in regard to it, it would have appeared to have been then in Connolly, and limited to ten one hundred and sixtieths of the By-field tract, and included no part of Watson’s.
This deed was produced to Sutro’s attorney. He testifies that he had it in his hands, and read it. He had notice of what was in it, and though it was constructive notice to Sutro, it bound him. As stated above, notice to an agent in course of a transaction is constructive notice to the principal, and it will not avail the latter to show that the agent failed to communicate to him what he was told. (Williamson v. Brown, 15 N. Y. 359.) This constructive notice, when it exists, is irrebuttable. It is not merely prima facie evidence, for then it could be rebutted. It is conclusive against the truth of the fact, as said by Gibson, J., in Weidler v. Farmers’ Bank, 11 Serg. & R. 134: “ Constructive notice is not prima facie evidence of actual knowledge of the fact; the presumption of notice, if it arises at all, being conclusive even against the truth of the fact.”
The cases cited by counsel for defendant as to constructive notice lay down no rule in conflict with those set forth. In the case of Wilson v. Wall, 6 Wall. 91, supra, it was attempted to charge a purchaser under a patent issued by the United States government in the execution of a treaty made with the Choctaws. The rule approved in the case referred to as to notice, as stated in Sugden
In Carrier v. Shawangunk, 10 Fed. Rep. 220, an attempt was made to defeat a recovery in an action brought by the holder on certain negotiable bonds purchased for value before maturity. The issuance of the bonds depended on the consent in writing of a majority of the tax-payers of the town. As stated by the court, and as fairly to be gathered from the statute, certain commissioners were invested with the power to decide whether the proper number of tax-payers had consented. No infirmity appeared on the face of the bonds. They recited that they were issued in pursuance of an act of the legislature, and by duly appointed commissioners. The court held that the purchaser of municipal bonds is charged with notice of the laws of the state which authorized their issue, and of a want of power in the municipality, or its officers, to issue them, and that the recitals in the bonds, when held by a bona fide purchaser, are conclusive. The recitals protected such a purchaser. To this point the court (United States circuit court, southern district of New York) cites Coloma v. Eaves, 92 U. S. 484; Humboldt Township v. Long, 92 U. S. 642; Walnut v. Wade, 103 U. S. 683). The gist of the judgment is in these words, which conclude it: “ Knowledge by the purchaser of municipal bonds before maturity of their invalidity, when there are no marks of infirmity on the face of the
In this case it maybe said that the marks of infirmity are on the face of the deed. The question is, whether Sullivan acquired by the deed of 1870 the equitable title of Watson. A just interpretation of the language of the deed shows that he did not. Sullivan did not have it when he sold to Baird, and Baird could not transfer it to Sutro. A vendor cannot convey that which he has not, nor can a grantee take anything beyond what is conveyed to him. Caveat emptor is the rule in all purchases as to the title, unless stipulated to the contrary. The purchaser must see that his grantor has the title which he seeks to acquire. He has the right to call on his vendor to show that he can sell and convey what he proposed to sell and convey, and to which the vendee seeks to acquire an unencumbered legal title in fee; and if the vendor cannot make such a title, the purchaser has the right to decline the purchase.
Whether the attorney turned away, and with gross negligence failed to make inquiry of facts of which he was put on inquiry, need not be considered here. The notice and information of the infirmity of Sullivan’s title was given on the face of the papers, and the failure of the attorney to inquire of Watson could not make Sutro an innocent purchaser, when the papers furnished him gave him notice of Watson’s interest in the land he desired to purchase. The rules as to notice adopted in this case are in accord with the judgments in the two eases referred to above, as cited by counsel. The epithets used
We see nothing in the instrument (the deed of the 25th of April, 1870) which can work an estoppel against Watson. Watson did not deceive Baird or Sutro. This paper was accessible to both of them before they purchased. If Baird did not see it, it is because he took Sullivan’s word for its contents, that it was a family arrangement which allowed him to do with the land as he chose. Baird had a right to have Sullivan produce it for his inspection. If he did not see it, it was because he did not care to see it, on account of Sullivan’s representation of its contents. Sutro’s attorneys saw it and read it. Watson did not intend to deceive, and did not deceive, either Baird or Sutro. Without the element of deceit there can be no estoppel. (Davis v. Davis, 26 Cal. 40, 41, et seq.; 85 Am. Dec. 157, and cases there cited.) Neither party was deceived or injured by the conduct of Watson. Under these circumstances, there can be no estoppel. (Davis v. Davis, 26 Cal. 40,41, et seq.; 85 Am. Dec. 157, and cases there cited.)
Some other points raised by counsel for appellant remain to be considered. The contention is made that the plaintiff had not a right to maintain this action, and it is said that this is an action under section 752 of the Code of Civil Procedure, which provides that when several co-tenants hold and are in possession of real property, as parceners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for the partition thereof, according to the respective rights
But if the party has an estate of inheritance, it is sufficient. The statute so declares. An equitable estate at common law was an estate of inheritance. The estate is held in trust for the cestui que trust, will descend, and may be sold, and transferred by conveyance. Blackstone, in his second book, page 337, uses this language: “ The trust will descend, may be aliened, is liable to debts, to execution on judgments, statutes, and recognizances (by the express provision of the statute of frauds), to forfeiture, to leases, and other encumbrances; nay, even to the curtesy of the husband, as if it was an estate at law.”
An equitable estate in land is real property, and must descend in case of intestacy as legal estates. This has been so by the statute ever since this state had an existence. (See section 1 of the act of 1850, to regulate descents, etc., Civ. Code, sec. 1384.) “ Where any person having title to any estate .... shall die intestate, as to-such estate, it shall descend,” is the language of the first section of the act of 1850. By section 1384 of the Civil Code, all property, real and personal, shall descend, etc. That equitable estates descend, see Grover v. Hawley, 5 Cal. 486; Everson v. Mayhew, 57 Cal. 144. In fact, in most cases in this state the difference between equitable and legal estates is of no practical importance. They are. both estates originating by law, and held under law, and in that sense are legal estates, and where a court is at liberty to rely on the rule of equity of considering that as done which ought to be done, the difference between an estate so regarded and an estate at law is not worthy of consideration.
The mode of administering law in this state, under our
i
The object of the code being to permit but one form of action, in which either or both legal or equitable remedies may be sought, it would be unwarrantable to hold that this did not apply to actions of partition.
When a court of equity has once obtained jurisdiction, it will do complete justice by deciding the whole case.
As legal and equitable remedies may be sought and had in the same case, especially where they relate to the same subject-matter, we see no reason why the owner of the equitable title may not sue to establish his right, and when so established, if he is a tenant in common, ask for and have a partition of the common estate, as where the reformation of a deed from mistake or fraud is sought, the plaintiff, if he succeeds in procuring the reformation, may sue for and obtain the possession of
It is urged that the action of the plaintiff is barred by sections 319 and 322 of the Code of Cixdl Procedure, but as there has been no adverse possession, this cannot be. There has been no adverse possession by any one of the tenants in common. (Love v. Watkins, 40 Cal. 569; 6 Am. Rep. 624; Unger v. Mooney, 63 Cal. 586; 49 Am. Rep. 100.) Watson was as much in possession as any of the co-tenants, or if possession was had by the trustee, it xxras as much the possession of Watson as of the other co-tenants. There was no possession such as to put Watson on inquiry. There x\ras no open repudiation of any trust by Baird, and certainly none ever known to Watson. Watson was certainly ignorant of Baird’s declaration of trust, and of Sullivan’s conxreyanee to Baird, until a short time (which was less than five years) before the commencement of this action. The evidence discloses nothing which in any way barred Watson’s cause of action.
The court below committed no error in ruling on the admissibility of testimony. We have examined the points in this record made on behalf of defendant, and are of opinion that they are not w-ell taken.
In regard to the motion to dismiss the appeal from the order denying a new trial, from the conclusion reached it is unnecessary to decide it. We will say, however, that we are inclined to think that this appeal was
The power of attorney executed by Buclcnall and wife, the plaintiff and wife, and John 0. Davis to Eugene Sullivan was offered in evidence, on which some stress is laid as authorizing Sullivan’s conveyance to Baird; but as Sullivan does not assume to have acted under this power of attorney in his conveyance to Baird, we do not see that any effect can be given to it in this action. It appears that Sullivan conveyed the property as his own, and not as agent for any one. He claimed to own Watson’s interest when he sold and conveyed to Baird. We cannot see anything in this paper to change the conclusion arrived at in this case. Nor does it make any difference that the power of attorney is stated to be coupled with an interest, and irrevocable. If he had acted under it, it should appear that he acted by the procuration of Watson.
The record is without error.
Order affirmed.
Sharpstein, J., and Fox, J., concurred.
Dissenting Opinion
I dissent. I do not think that under section 752 of the Code of Civil Procedure an action for the partition of land can be maintained by one who has not title, but has a mere asserted right to compel some one who has title to convey it to the plaintiff. He should establish his claim against the one whom he asserts to be his trustee, and settle accounts with him, before bringing the other co-tenants into litigation; at least he should be able to aver that he has
I think, also, that, on the merits of the contest between plaintiff and the defendant Sutro, the judgment should have been for the defendant, and therefore should be reversed.
Lead Opinion
have heard this case the second time, and upon a further examination of the record and the briefs of counsel, we feel constrained to adhere to the reasoning of the former opinion and the conclusion therein reached.
The order appealed from is therefore affirmed.
McFarland, J., and Fox, J., dissented.
Concurrence Opinion
—I concur. An equitable estate may be one of inheritance. If so, and the title is one under which the party holding it is entitled to possession, I am of the opinion that he may maintain an. action for. partition.
