The appellants contend that there is a difference in the situation of tenants in common, when there is only one of them in actual possession--physically, there is a difference as to the place of residence of the parties, but in fact and in law they are still tenants in common--mentally, one of them may believe, or pretend to believe, that he is the owner of the entirety, yet the facts and the law remain the same. " Tenants in common are such as hold by several and distinct titles, but by unity of possession: because none knoweth his own severalty, and therefore they all occupy promiscuously." (2 Blackstone Com. 181.) The possession of one is the possession of all, (Carpentier v. Webster , 27 Cal. 541,) and this brings us irresistibly to the conclusion that a person cannot carve or dedicate a homestead out of lands as much in the legal possession of othersas himself, and of which he knoweth not his own part or severalty.
JUDGES: Rhodes, J. Mr. Justice Shafter did not express any opinion.
OPINION
RHODES, Judge
The uniform construction of the Homestead Act of this State has been, that a homestead cannot be carved out of land held in joint tenancy or tenancy in common. (Elias v. Verdugo , 27 Cal. 418; Wolf v. Fleischacker , 5 Cal. 244; Reynolds v. Pixley , 6 Cal. 167; Giblin v. Jordan , 6 Cal. 417; Kellersberger v. Copp , 6 Cal. 565.)
At the time Brophy filed his declaration of homestead, he held the legal title to the undivided seventeen eighteenths of the premises, and the title to the remaining eighteenth was in another person. The plaintiffs contend that the doctrine of the cases above cited has no application where the tenant in common is in the adverse possession of the land which he claims to hold as his homestead, or where he alone is in the actual possession. The facts necessary to raise the question in respect to the alleged adverse possession are wanting in this case. There is no proof of the adverse possession of Brophy. His entry under the deed executed to him, and his belief at the time that the deed conveyed the entire title, followed by his exclusive actual possession up to the time of the filing of his declaration, did not amount to an ouster of his co-tenant. As between tenants in common, adverse possession begins with an actual ouster. Nothing short of an actual ouster will sever the unity of possession. Brophy's actual possession did not impair the right of his co-tenant, for under the fundamental rule of the relation, his possession was prima facie the possession of his co-tenant. While the co-tenant possessed the right to enter upon and enjoy the common land, it was impossible for Brophy to acquire a homestead in the whole or any part of it, for that, if permitted, would destroy the tenancy in common in the land thus taken.
The plaintiffs cannot maintain the position that they hold the equitable title to the one eighteenth in question, for in their complaint they rely upon the legal title to the whole premises, without claiming the equitable title to any portion thereof; and besides this, the evidence fails to show that Brophy or they acquired the equitable title to the undivided eighteenth.
Judgment affirmed.