Gates v. Salmon

Action for partition of the Rancho “ Laguna ele San Antonio.” Bartolome Bojorques, the owner of the rancho, conveyed to his eight children, jointly, the undivided eight ninths of the rancho, and subsequently conveyances of specific portions of the land were executed to divers persons, none of which were executed by all the tenants in common, but all were executed by two or more of them. The tracts thus conveyed are denominated by the parties “ special locations,” and the grantors “ original grantors.” Those holding special locations, as well as those holding undivided interests • in the rancho, were made defendants to the proceedings. The Court ordered a partition of the rancho, and on the coming in of the report of the referees rendered judgment of partition, without ascertaining and determining the rights and interests of the holders of the special locations—the action not having been dismissed as against them—or ordering any portions of the lands to be set off to them. This constitutes the principal ground of complaint on this appeal.

The first question is, whether the holders of the special locations are proper parties to the action. The language of the statute is sufficiently clear and explicit to afford a solution of the question. The judgment was rendered before the amendment of 1866 to the Practice Act was passed. Section two' hundred and sixty-four provides that “ where several persons hold and are in possession of real property, as joint tenants, or as tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for a partition thereof, according to the respective rights of the persons interested therein,” etc. The respondents contend that this provision includes only those who are joint tenants or tenants in common of the whole tract of which partition is sought. That is the correct construction, if the section is to be considered alone, and without regard to other sections of the Act which have a material

The appellants’ counsel takes the position that a conveyance by one tenant in common, or any number of them less than the whole, of a specific portion of the common lands is not void. This is not controverted by the other side, but they insist that it is so far void as against the other tenants in common that they may disregard it on partition. The rule upon this point is, that one tenant in common cannot convey any specific part of the land so as to prejudice his co-tenant. (Porter v. Hill, 9 Mass. 34 ; Bartlet v. Harlow, 12 Mass. 348 ; Baldwin v. Whiting, 13 Mass. 57 ; Rising v.

It is not difficult to show that in some cases the holder of the special location is a necessary party. If he is regarded as an unnecessary and improper party while he holds a conveyance from only one of the co-tenants, he will not be rendered competent to participate as a party to the action by receiving further conveyances from the remaining co-tenants, nor can his position be strengthened in consequence of his grantor’s subsequent conveyances to the other tenants in common or to strangers, by specific locations or otherwise, sufficient to cover all the general tract remaining after his conveyance of the first special location. Where an original grantor has covered the general tract with his special locations, as he has parted with interest in the whole tract he is not a proper party to the partition. Must his original share be unrepresented in the action ?• Suppose A. and. B. are tenants in common of the general tract, and that A. conveys the east half to 0., and the west half to D. It is desirable to B. to have a partition. Whom will he make defendants ? Evidently-not A., for he has no interest in the premises, his two conveyances having as completely severed his connection with the general tract as would one conveyance of the whole tract to D. alone. G. and D. are necessary parties, for there is none other whom B. can sue as holding an interest of any kind in the tract. If, after A.’s several conveyances, G. conveys his interest to D., it cannot be doubted that D. is a necessary party, for if the two halves of a thing are equal to the whole, D. holds the full and precise interest held by A, while a tenant in common with B. All of those convey

Suppose, again, that A. conveys to C. and D., respectively, specific parcels, by metes and bounds, and then conveys his undivided interest in the whole rancho to B., and that on a survey it is found that the two specific parcels comprise the whole rancho. The deeds of A. to 0. and D. vested in them all the interest in the rancho, and as he could claim nothing in the rancho, B., as his vendee, was in no better position in respect to A.’s half than A. would be had he not conveyed to B., and would remain the owner of only the undivided half of the rancho. Whom will B. sue as the defendant to his action for partition? Certainly not A., for A. conveyed his undivided interest in the whole rancho to B.; and if C. and D. are not proper parties, because of their holding only special locations, B. cannot commence the action,-for there is no one whom he can make a defendant.

' Sufficient attention has not usually been given to the position occupied by the tenant in common after a conveyance of a specific parcel of the general tract. He is often mentioned as a tenant in common of the general tract, but this is not true in any sense nor for any purpose. The remaining tenants in common, in applying for a partition, are entitled to the same relief in every respect that they could demand were the special locations remaining in the hands of the

The view that the holders of the special locations are necessary parties is materially strengthened by considering sections two hundred and seventy-eight and two hundred and ninety-three of the Practice Act, in connection with section two hundred and sixty-eight, above cited. It is provided by section two hundred and seventy-eight that the judgment confirming the report of partition shall be binding and conclusive: “ First—On all persons named as parties to the action, and their legal representatives, who have at the time any interest in the property divided, or any part thereof, as owners in fee, or as tenants for life or for years, or as entitled to the reversion, remainder, or the inheritance of such property, or any part thereof, after the termination of a particular estate therein,” etc. The words “ any part thereof” necessarily mean, in the connection in which they are used, any part of the property, and not any portion of an undivided

Some of the authorities cited by the counsel for the respondent would militate strongly against the conclusion to which we have arrived, were it not for the fact that those cases turn mainly on the terms of the statute under which the proceedings were instituted. Thus in Harwood v. Kerby, 1 Paige, 469, it was held that an incumbrancer was not a proper party, because he was not included in the words of the statute. In Bradshaw v. Callaghan, 8 Johns. 563 , it was decided that the widow in respect to her claim of dower, was not a proper party, on the ground that “ she is not

Without proceeding further with a review of the cases cited, it is sufficient to say that those which touch this point are made to depend upon the peculiar provisions of the statute under which the proceedings were had. An exception to this is found in Porter v. Hill, 9 Mass. 34 , in which it is held that one joint tenant cannot convey a portion of the premises to a stranger, and the reason given is, “ that if he could, his grantee would become a tenant in common of a particular part with the other joint tenant, who in making a legal partition might, notwithstanding, have the whole of the part thus conveyed assigned as his property.” This doctrine cannot be sustained. The reason given is the very contingency, subject to which, as it is said in Stark v. Barrett, the grantee takes his conveyance of the specified parcel. In Bartlett v. Harlow, 12 Mass. 347 , the Court, in citing the decision in Porter v. Hill, that one joint tenant cannot convey any specific part of the land to a stranger, adds, “at least not so as to prejudice his co-tenant.” The doctrine that one tenant in common may convey a specific part of the general tract, subject to the contingency mentioned, is

Counsel place much reliance upon Stark v. Barrett, 15 Cal. 368 , as decisive of the correctness of their position. Mr. Chief Justice Field, in delivering the opinion of the Court m that case, said: “The grantee (of.the special location) must take, therefore, subject to the contingency of the loss of the premises, if, upon the partition of the general tract, they should not be allotted to the grantor.” A portion of the paragraph in which this language occurs has been already cited. The question as to who were proper parties to an action for partition was not involved even in the most indirect manner, nor was it discussed by counsel or determined by the Court. In passing on the question whether the purchaser of a specific parcel from one of the tenants in common could maintain ejectment against a stranger to the title, the Court held that his title was good against all the world except the other tenants in common, and as to them it was subject to the contingency of being taken by them, if it should be found necessary to do so in order to make a proper partition of the' general tract. It was not the purpose of the Court to determine who were proper parties to the partition of the general. tract, nor to whom the allotment should be made, but simply to say that the grantee of the special tract stood, as to the contingency of its loss, precisely in the stead of the grantor.

The doctrine of Courts of equity, on this point, is stated in 1 Story Eq. Jur., Sec. 656, c, as follows: “And Courts of equity, in making these adjustments, will not confine themselves to the mere legal rights of the original tenants in common, but will have regard to the legal and equitable rights of all other parties interested in the estate, which have been derived from any of the original tenants in common; and will, if necessary for this purpose, direct a distinct partition of each of the several portions of the estate in which the derivative alienees have a distinct interest, in order to protect that interest. Thus, where A., B., and C. were ten

It would seem that the respondents, in order to maintain the action, must adopt the view that the holders of the special locations are necessary parties, if it is true—and in our opinion its truth does not admit of a doubt—that the grantor, upon the execution of his conveyance of the special location, parts with all interest therein; and we think they must also support a quite liberal construction of section two hundred and sixty-four. The action.must be brought in the name of the real party in interest, according to section four, and none of the provisions relating to partition change that rule. After Bartolome Bojorques and his children became each the holder of the undivided ninth of the rancho, they made twenty-two deeds of distinct parcels, each executing one or more deed, but none of the deeds were executed by all the tenants in common, though each deed was executed by two or more of them. All of those deeds were made before any of the “ original grantors” conveyed undivided interests in the whole rancho. They, in conveying undivided interests, could not pass any other or greater interest in the rancho, or any part thereof, than they then held. Each tenant in common held nothing in the special location as against his or her vendee of the special location, and, consequently, at the time when the action was brought, there was no one of all the

There is no such thing under our system of pleading and practice as a suit in equity for partition distinct from the proceeding provided for in the Act. The rules there laid down are applicable alike to all actions for partition, and we see nothing in those rules, if section two hundred and sixty-four should be liberally construed, so as to advance the remedy—as we think it must, in order to meet a ease like the present—which will preclude the parties here from having a complete partition of the rancho among all the persons interested therein. Nor is there anything in the nature or extent of the interest of the several persons interested, that will prevent a partition. There may be many intricate and difficult questions to be settled between the holders of the special locations and those claiming undivided interests in the whole rancho, but they will have to be determined before the partition is complete. If partition is made in this action among the claimants of individual interests in the general tract, reserving the right of those holding specific portions, partition must afterwards be made between each claimant and the holders of the specific portions falling within his allotment, which were conveyed by his grantor. And in making such first partition the Court would—as was done in this case, and as the principles of equity and the dictates of common honesty would require—make the partition in such manner that the special locations should, as far as practicable, fall within the share of their several grantors. A complete partition should be made in one action, if practicable, and the parties desire it. It was very properly said by Mr. Chief Justice Sanderson, in De Uprey v. De Uprey, 27 Cal. 335 : “ Any question affecting the right of the plain

Our conclusion upon this point is, that the grantee of a special location occupies, as to it, the identical position that his grantor held immediately before he executed the conveyance, and that the holder of the special location is a necessary party to the action for the partition of the general tract.

The point presented by the appellants that, by reason of the understanding and verbal agreement among the grantees, the grantees took title in severalty to their respective special locations, is not sustainable on the record before us. It presents no finding of that fact, nor evidence from which it should have been found. There would be great difficulty, under the Statute of Frauds, in sustaining a partition attempted to be made in'that manner.

The error, as alleged by the appellants, and not controverted by the other side, in respect to E. B. Turner and W. B. Comstock, by which a certain interest was allotted to Comstock alone, instead of to him and Turner jointly, will be corrected on the new trial.

It is unnecessary to consider at any length the point made by Anita Bojorques—that on the death of her mother she became entitled to the undivided half of the interest conveyed to Pedro, her father, or so much thereof as he then held—for if on the new trial it shall appear that the conveyance of Bartolome to his children was made for a valuable consideration, as stated by the referee in his third finding, the property became common property, and, on the death of the wife of Pedro, the one half then remaining unsold descended to her daughter Anita. Should it appear, however, that the deed was executed as a gift to the grantees, the rule is the reverse, the property becoming the separate property of Pedro. (See Hihn v. Peck, 30 Cal. 280 .)

The whole argument of the counsel for the appellants is inconsistent with the idea that the plaintiff is barred by the Statute of Limitations, and as this very voluminous and complicated case ought not to be incumbered with unnecessary issues, it may not be improper to suggest that the defendants who have pleaded the Statute of Limitations should strike out the portion of the answer setting it up, unless they still rely on it; and it may be added that, as but little if any question was made, so far as the record before us shows, as to the findings of the referee being supported by the evidence, the parties might readily narrow the issues by agreeing to a large portion of the facts in the case.

Judgment reversed and cause remanded for a new trial— the costs of the appeal to abide the event.

[The foregoing opinion was delivered at the July Term, 1867, in which neither Mr. Justice Shatter nor Mr. Justice Sawyer expressed an opinion.—Rep.]

F. D. Colton, for Appellants, on rehearing, argued that the findings of fact contained in the record were sufficient predicate upon which this Court might render a final judgment in the cause, at least as to appellants.

A. T. Wilson, A. Thomas, and George Pierce, for Respondents, p er contra.

We are unable to render judgment without disregarding or rejecting some of the findings. The referee found that the whole rancho was owned by certain of the parties, and

Those findings remaining, the holders of the special locations, who claim about one half of the rancho, would be cut off, except so far as they might be included within the conveyances last mentioned. But, according to the principles announced in the former opinion in this case, those findings cannot stand. Each of the “ original grantors ” executed several of the conveyances of the special locations. Upon the execution of any one of these conveyances, the grantors ceased to have any interest in the special location conveyed; nor did the subsequent grantee, to whom was conveyed what purported to be an undivided interest in the whole rancho, acquire any interest in such special location.

In respect to the special locations, it was found that “ it was the custom and practice with the Bojorques family for different individuals to sell parts and parcels of said rancho by metes and bounds, and it was the understanding among them that such part and parcel should come out of the grantor’s share.” This is directly opposed to the theory that the holders of the special locations are tenants in severalty. The referee has not found what interest in the special locations each of the claimants thereof hold; but has found that certain of the original grantors joined in the execution of the several conveyances mentioned, and that the grantees, in certain instances, executed conveyances of portions of all their respective special locations. These, of course, are not the ultimate facts of title in the special locations, but are mere probative facts. No judgment could rightfully be rendered until those ultimate facts were found; and it has often been repeated that it is not the province of this Court to find the facts in cases pending an appeal. If the special locations are taken up in detail, it becomes more apparent that this duty is more appropriate to a referee, who can examine each of the conveyances, and, after ascertaining the title

It is not difficult to appreciate the anxiety that many of the parties manifest for a speedy final decision of this case. The questions are complicated almost beyond precedent. It may safely be said that the books furnish no instance of a case involving the title to a large tract of land—some twenty-five thousand acres in this case—in which no one holds title in severalty to any part, and no one is a tenant in common of the whole. When such confusion and complexity are mainly the result of the conveyances the parties have executed or accepted, they cannot complain that much time and labor are required for the solution of the numerous questions involved. Much labor and expense may be saved by using, as the parties are entitled to do, the documentary evidence on file in the case, including the referees’ report of the testimony, and the deeds, exhibits, etc., subject to objection as when first offered, and the surveys, field notes, maps, etc., of the referees on partition.

Judgment reversed, and the cause remanded for a new trial. The costs of the appeal to be awarded upon the final disposition of the action.

dissenting:

I dissent.

The last foregoing opinions were delivered at the July Term, 1868.