The appellant contends that the Court erred in admitting the record in Weeks v. Mallon, because there was " nothing in the record itself to show that the plaintiff was privy of record to the suit."
If the principle asserted by the appellant in this proposition be correct, then it must follow, as a logical consequence, that the action of ejectment, although brought on strict legal title, determines nothing against the outstanding title under which the defendant claims, unless the defendant's grantor is a party to the record; and as the person in possession is the proper party defendant, and the only party, a landlord, by keeping a tenant in possession, may secure a day more in Court than, by the old rule, is accorded to a litigant. He may first defend, in the name of his tenant, and then, by stepping into possession, just as the tenant is yielding to the adverse adjudication, be in position to renew the contest. A principle like this is subversive of the ancient rule, which forbids multiplicity of suits, and gives to every one his day, and no more; and it is equally opposed to the theory and object of the action of ejectment, and, in short, would often destroy the remedy entirely. The owner would be compelled, unless he was willing to encounter double trouble and expense, to await, for the commencement of his action, the landlord's pleasure in resuming personal possession; for without such possession in person, the action must fail.
" The action being a possessory action, and being required, as we have always held, to be brought against the person in possession--the occupant of land (Hawkins v. Reichert, 28 Cal. 536, and cases there cited), when the lands are in possession of a tenant, the tenant, and not the landlord, is the proper party defendant. The landlord is neither a necessary or proper party defendant; and if he is made a party, the Court, on the hearing, will, on motion, order a nonsuit as to him." (Dimmick v. Derringer, 32 Cal. p. 488.)
By the answer of Mallon (in Weeks v. Wallon ), the plaintiff in that suit was put upon proof of his legal title, and the defendant in the same suit had a right to defeat it by showing a paramount legal title in himself or his grantor, Russell. (Marshall v. Shafter, 32 Cal. 176.)
" Where the title of the landlord is set up in defense to the action, and the landlord appears and defends the action, at the request of the tenant, and in his name, he cannot be heard to say, in a contest with the tenant, that the tenant was not ejected by paramount title." (Wheelock v. Warschauer, October Term. 1867.)
JUDGES: Rhodes, J., delivered the opinion of the Court. Sawyer, C. J., expressed no opinion.
OPINION
RHODES, Judge
The question here presented is the same as that which was discussed and passed upon in Valentine v. Mahoney (37 Cal. 389), which is, whether a judgment is an action of ejectment, in which the landlord of the defendant defends the action for and in the name of his tenant, and puts his own title in issue, is admissible in evidence, by way of estoppel, in an action of ejectment brought by the same plaintiff against such landlord. Upon the authority of that case, we hold that the Court below correctly admitted the judgment in evidence. That judgment being decisive of the question of title, it becomes unnecessary to consider the question of admissibility or effect of the judgment in the action of Russell against Weeks to quiet the title to the premises.
Judgment affirmed.