43 Cal. 65 | Cal. | 1872
The plaintiff deraigns title to one undivided fourth of the premises in controversy under a valid alcalde grant, and is entitled to recover the possession of the whole property as against the defendant, who has shown no title, unless the judgment in the case of Sutton v. Woods et al. shall have the effect to limit his recovery to the one undivided fourth only. Heither the plaintiff or his grantors were parties to that action, or in privity with the defendants therein; and it is conceded that his rights are unaffected hy the judgment. But it is said that Woods, Hastings, and Haskell, the defendants in the former action, who were then cotenants in common with the plaintiff’s grantors, are concluded by the judgment, and are estopped thereby from setting up title or a right to the possession, as against the present defendant, who was the plaintiff in that action; and hence that the-present plaintiff is not entitled to recover the possession of the three undivided fourths formerly claimed by them, and to which it has been argued the present defendant has the better title, as against Woods, Hastings, and Haskell. But one of the incidents of a tenancy in common holding the title, is that each of the cotenants is entitled to the-exclusive possession of the entire property, as against the whole world, except his cotenants. A person without title and wrongfully in the possession, cannot gainsay the right of each of the tenants in common to the possession of the whole. As between tenants in common and a trespasser, each tenant in common is better entitled to the possession than a wrongdoer. The former is seized per mi et per tout, and has an interest in the whole, which entitles him to the enjoyment of the entire estate as against every one except his cotenants. Is the defendant a cotenant with the plaintiff? If so he must have acquired that status by means of the judgment in the former action, in which it was adjudged that as between him and
In my opinion the judgment ought to be reversed, and a new trial awarded.
Mr. Justice Wallace, being disqualified, did not sit in this case.