Bollo v. Navarro

         Point I has been fully considered, and settled against appellant by this Court in one of the cases cited by him. (De Uprey v. De Uprey , 27 Cal. 329.)

         It may be true that the suit for partition can only be commenced upon the alleged fact that the parties are cotenants; but it does not follow for that reason that the answer may not deny the allegation, set up sole and exclusive title in defendant, and that the Court may not try and decide the issues so made.

         Point II is not well made. All of the testimony referred to was taken without any specific objection on the ground of being " hearsay" or public rumor; and therefore that objection now is unavailing. (10 Cal. 268; 12 Cal. 245.) If any objections at all were made, they were made to the interrogatories, and no motion was made to strike out the answers of the witnesses. Without this the objections were worthless.

         In regard to Point III, we differ entirely with appellant. Assuming that the parol grant was not sufficient, yet respondent having taken adverse possession under it, claiming title, the ten years adverse occupation and claim afterwards raise the presumption of some other and sufficient grant. (Nieto v. Carpentier , 21 Cal. 471, 490, 491; 1 Cal. 55; 1 Cal. 488; 7 Cal. 425.) From these it would seem that the occupant having entered in good faith, believing that she had a title, and asserting it, a good grant would be presumed in her favor by lapse of ten years peaceable possession.

         JUDGES: Sanderson, J. Mr. Justice Rhodes did not express an opinion.

         OPINION

          SANDERSON, Judge

         By the Court, Sanderson, J., on petition for rehearing:

         In his petition for a rehearing counsel complains that we have assumed, rather than decided, that an " outstanding title" may be tried in an action for partition. On that head it is sufficient to say that we have assumed nothing of the kind. No question as to an " outstanding title" is made in the case. As to title the only question presented is whether, at the time of the death of Carmen, she, or Dolores, was the owner of the lot. If Carmen was the owner, then the plaintiff has become a tenant in common with Dolores. If Dolores was the owner, then the plaintiff has acquired no title and is not a tenant in common with Dolores, and is, therefore, not entitled to a partition. That such a question may be tried in an action for partition may have been assumed rather than decided, for, in common with other Courts, we sometimes assume what is too obvious for argument.

         Whether the plaintiff and defendant are tenants in common is the first issue to be tried, if made, in an action of this character. If the Court finds the issue in favor of the defendant, the action is at an end. The idea that a party sued in partition cannot deny that he is a tenant in common and set up that he is the sole owner of the premises, is simply preposterous. There never has been a time when he could not. Under the old system, if this was done, the partition was stayed, and the parties were sent to a Court of law to try the issue, for the simple reason that a Court of equity could not try it. If the Court of law found the issue in favor of the plaintiff, the Court of Chancery then proceeded with the partition; if for the defendant, the bill was dismissed. But the reason for this practice does not exist under our system. On the contrary, we have but one Court, which has in the premises all the powers of both law and equity Courts under the old system; and there is, therefore, in such a case no necessity for two actions, one at law and the other in equity, as under the former system. On the contrary, the Court proceeds in one action, and first tries and determines all the questions at law; and if the decision is favorable to the plaintiff, then takes up and disposes of the equitable part of the case; if for the defendant, the partition is denied without any further action. This was expressly decided in De Uprey v. De Uprey, and reaffirmed in Morenhout v. Higuera; but as counsel is disposed not to so understand those cases, we have thought proper again to declare such to be the rule.

         Upon the other points we have no occasion to add to our former opinion.

         Rehearing denied.