Hughes v. Devlin

         The question raised by the demurrer is, whether possessory claims upon the lands of the United States, for mining purposes, in this State, are estates of inheritance. These possessory claims upon the public land, have been uniformly regarded by the Supreme Court of this State as real estate, and persons in actual prior occupancy, as possessing valid titles as against all the world, except the United States Government. (Lowe v. Alexander , 15 Cal. 302.) These estates are estates of inheritance. (Bouvier's Law Dic. Title " Real Estate," 2-11; Tomlon's Law Dic. 196; Jacob's Law Dic. 446.) It is such a right, property, interest, and estate in lands, as will, by the operation of law, pass to the heirs of the intestate holder or owner, (Bouv. Law Dic. 633,) and therefore is the subject of partition under the statute of this State.

         JUDGES: Crocker, J. delivered the opinion of the Court. Norton, J. concurring.

         OPINION

          CROCKER, Judge

         On petition for rehearing, Crocker, J. delivered the opinion of the Court. Norton, J. concurring.

         It is urged in the petition that the property in controversy being used as partnership property, an action for a partition will not lie, and that a suit in equity must be brought to dissolve the partnership, and for an account of the partnership business. It does not appear in this case, that any suit in equity is necessary to settle and adjust the business of the partnership. The mere fact that real estate, owned by persons as tenants in common, or even as partners, is used in a partnership business, affords no valid objection to an action to partition the same between the owners. The property was of such a character, and the owners had such an interest therein, as afforded a proper ground for an action for a partition, as has been shown by the previous opinion of this Court; and as the answer did not deny any of the allegations of the complaint, but merely set up the facts upon which the claim that a partition would not lie was founded, the demurrer to the answer was properly sustained.

         It is objected that no evidence or proof was offered to show that the property was not capable of being partitioned without great prejudice to the owners, to authorize the Court to order a sale. The fact was averred in the complaint, and was not denied by the answer, and it was therefore properly deemed admitted, like any other material fact affecting the rights of the parties, or the form of the remedy to which they might be entitled. The terms of the two hundred and seventy-fifth section of the Practice Act are a little peculiar upon this subject, but it does not vary the rule laid down in other sections, as to what facts are to be deemed admitted. No objection of this kind was made in the Court below; and even if such proof were necessary, it may properly be deemed to have been waived under the circumstances, the defendants evidently relying upon their answer being a sufficient defense to the action. The same remarks apply to the objection that there was no proof of the title to the premises. The title and ownership was averred in the complaint, and not denied in the answer, and no objection of this kind was raised in the Court below. If it had been, and the Court had ruled that proof was not necessary, then such ruling might have been reviewed by this Court. But the objection should not be raised here for the first time.

         The Court appointed a referee, to make sale of the property, in accordance with the decree, to which no objection appears to have been made in the Court below; but it is now contended that the Court should have appointed three instead of one. Sec. 275 of the Practice Act provides, that if a sale is not directed to be made, the Court shall order a partition, and shall " appoint three referees therefor." This does not apply to a case like the present, where a sale, and not a partition is ordered; and such sale can be as well conducted by one as three referees. This objection is not, therefore, well taken.