Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 21 Cal. 191 at 201.
Appeal from the Third Judicial District.
San Francisco DeSoto, to whom the San Lorenzo Rancho had been granted by the Mexican Government, died in 1845, and by his will devised the said rancho, and all his property, to his wife, Donna Barbara de Castro, in trust for herself and his children, and appointed her and one Peralta as executors. By the will the executors were empowered, upon certain contingencies, to sell the whole or a portion of the property.
Peralta never qualified as executor, and the duties of the trust devolved upon the widow alone. On the twenty-fourth of March, 1853, the executrix executed to Brady and Jones, from whom the plaintiffs derive their title, the following deed:
" State of California,)
County of Santa Clara.)
" This indenture, made this twenty-fourth day of March, A. D., one thousand eight hundred and fifty-three, between D< a> Barbara Castro, widow of the deceased Don Francisco Soto, resident of the county of Contra Costa, of the first part, and William Carey Jones, of the city of San Francisco, and Lewis Brady, of said county of Contra Costa, parties of the second part, witnesseth: That said party of the first part has bargained and sold, and does hereby bargain, sell, and convey to said parties of the second part, all the right, title, and interest which she, the said D< a> Barbara, has or may have, either in her own right or by law, or by the last will and testament of her late deceased husband, or that as executrix or administratrix under said will she has or can have the right to dispose of, in and to the following described property, to wit: All that rancho or tract of land called the Rancho of San Lorenzo, situated in the place called San Lorenzo, in said Contra Costa County, or rather in the lately formed county of Alameda, and which was granted by the Mexican Government to the late Don Francisco Soto, and supposed to contain one sitio and a half, or one and a half square leagues, Mexican measurement; that is to say, one undivided half part of all of said rancho or tract of land, with all its profits, appurtenances, and advantages; provided, nevertheless, that said purchasers, parties of the second part, shall have a right to an immediate partition of said land, and may have the privilege of dividing the same in equal parts, either latitudinally or longitudinally, as may to them seem best; but, provided, that if they divide it longitudinally, that is by a line drawn from the creek of San Lorenzo to the creek called Del Alto, they shall not take that portion which lies next to the mountain, but shall take that part which fronts upon the bay; and from such salinas, or salt deposits, as there may be on the same, said D< a> Barbara shall always have the privilege to take such portions of salt as she may require; and if said purchasers shall choose to divide the said land latitudinally, that is by a line drawn from the mountains to the bay, then they shall not take that part that lies next to said creek called Del Alto, but shall take that part which lies next to the creek of San Lorenzo. And, on the said division being made, this instrument shall operate as an immediate release and conveyance from said party of the first part to the said parties of the second part, of the particular portion of said rancho as under the foregoing conditions they may elect to take, with all its appurtenances, that is the appurtenances of said one-half. The consideration of this purchase is the sum of $ 35,000, by said parties of the second part to said party of the first part, in hand paid and secured to her satisfaction, and this sale and conveyance is absolute to said parties of the second part, their heirs and assigns, forever.
" In testimony whereof, we have hereunto set our hands and seals, at Pueblo San Jose, the day and year above written.
" The words 'to take' interlined before signing.
" Signed, sealed, and delivered in presence of
" Frederick Hall,
" Peter Davidson.
her
" Barbara X Castro, [L.S.]
mark
" Wm. Carey Jones, [L.S.]
" Lewis Brady. [L.S.]"
Under this deed Carey and Jones, and subsequently as successors to them, the plaintiffs entered into possession of the northern portion of the rancho, which possession they retained at the commencement of the present action.
Proceedings for confirmation of the grant were commenced before the Board of Land Commissioiners by whom the grant was confirmed with certain specified boundaries. From their decree an appeal was taken to the United States District Court, where a final decree of confirmation was rendered leaving the boundaries, as described in the original grant, to be ascertained by official survey. A survey was made by the Surveyor-General, by which about 1,500 acres on the southern side, which had been included within the boundaries as fixed by the Land Commissioners, was excluded, and left without the southern line.
While the question of boundary was in this condition, and proceedings being taken to correct the official survey, the plaintiffs commenced the present action for the purpose of obtaining a partition of the premises, making the widow and other owners, together with certain incumbrancers, parties defendant.
The complaint set up substantially the foregoing facts, and stated that plaintiffs had elected under the stipulation in the deed to take their portion of the land upon the northern side of the rancho, and concluded with a prayer that the portion of the rancho embraced within the survey of the Surveyor-General might be divided by a line running east and west into two equal portions and the northern portion awarded to them, leaving the 1,500 acre tract, which had been excluded by the official survey, to be the subject of future arrangement. Demurrers were interposed to the complaint and overruled. Defendants answered, and a trial was had before the Court without a jury resulting in findings in favor of plaintiffs. An interlocutory decree was entered, adjudging that plaintiffs by virtue of the covenants in the deed above set forth were entitled to the relief prayed for and appointing commissioners to divide so much of the rancho as was included in the official survey. Upon the report of these commissioners, a final decree was entered setting apart to plaintiffs the northern half of the surveyed portion of the rancho. From this decree defendants appeal.
The case was argued by a number of counsel with much research and ability, but principally upon points not touched upon in the opinion. Whether the complaint stated a cause of action; whether the will of DeSoto authorized in any event the sale of the real property; whether if it did, the contingencies upon which a sale was authorized had arisen at the time the deed was made, were questions elaborately discussed, but as the decision of the Court was placed upon grounds not involving these points, it has not been deemed necessary to state with more particularity the facts in relation to them or to give the arguments of counsel thereon.
COUNSEL:
Not only the complaint alleges, but the evidence shows, that the bounds and extent of this rancho were unsettled.
The map of the Surveyor-General is produced. This map and survey the plaintiffs say in their complaint is incorrect, and that it cuts off and excludes 1,500 acres from the rancho as confirmed. In connection with the map, plaintiffs also produce the certificates of the Surveyor-General, and copies of the decrees of the United States District Court. Defendants show that this survey had been ordered into the United States District Court for revision. And yet on this unsettled survey--a survey yet pending and undetermined, one that the plaintiffs tell us in their complaint is grossly incorrect--this partition is made! The transcript shows that the precise land embraced in this incorrect and unsettled survey is the land actually partitioned. And the Court in its final decree expressly excepts the 1,500 acres from this partition, and leaves that to be made the subject of some future partition. The absurdity of this proceeding is its own best illustration. Suppose the lines and extent of the rancho should finally be settledaltogether different from and so as to embrace a part only of the land partitioned in this suit? Some of the parties might thus be deprived of any land, and others have more than their fair share.
The lines and boundaries of this rancho are not yet fixed. No one now knows or can say what are its limits. This is an open and unsettled question.
But if it may be taken for granted that the land already partitioned will finally fall within the limits of the rancho, (and this is a mere assumption) yet the absurdity of asking for a piece-meal partition still remains. (Story's Eq. Jurisp. sec. 1526; 5 Cal. 114; Cobin v. Corwin, 15 Wend. 557; Stevens v. Lockwood , 13 Id. 664; Bendernagle v. Cox , 19 Id. 202; Gurnsey v. Carver , 8 Id. 492; Smith v. Jones, 15 J. R. 229; see also Story's Eq. Pl. sec. 287; Cooper's Eq. Pl. 184, 185; Pufey v. Pufey, 2 Vern. 29; Milford's Eq. Pl. 183; Newland v. Rogers, 3 Barb. Ch. 435.)
The plaintiffs claim in their complaint that they are entitled to the north half of the rancho, and so the Court says by its decree. But, by and by, they are to get seven hundred and fifty acres off from the extreme south half, and some twomiles distant from where they and the Court say their land lies! When that other partition takes place, the defendants also will get a share in this 1,500 acres, according to the interest held, some of them, as calculation will show, as low as ten acres--every owner being thus provided with two distinct parcels of land at a distance from each other, in virtue of his common ownership in the whole tract. This proposition is too absurd for comment. The foregoing is only a fair statement of not only what might but what will take place in this very case, if the statements of the parties in the pleadings are to be credited, and the final decree provides that it shall or, at least, may occur.
It is objected that a partition of the rancho cannot be had, because there is another tract of 1,500 acres, which is claimed by the owners of San Lorenzo Rancho as belonging to their grant, and by the owners of the land adjoining on the south as belonging to them.
There are several answers to this objection: 1st. As the facts are exhibited at present, such additional parcel of land belongs to the rancho adjoining on the south; for by the survey of the United States Surveyor-General, made in pursuance of the decree of the District Court of the United States, this surplus has been included within the bounds of the last mentioned rancho, and excluded from the limits of the San Lorenzo Rancho. Until that survey is set aside, this additional tract of land belongs, to all intents and purposes, to the southern rancho. 2d. Even though it did belong to the San Lorenzo Rancho, it constitutes a tract separate and apart from it--that is, the San Lorenzo Rancho has definite boundaries, exclusive of that additional parcel of 1,500 acres. Each parcel, therefore, constitutes a distinct lot by itself. And it is an unquestionable rule in equity, that where persons are tenants in common of two or more distinct and separate lots or parcels of land, either one of them may have a partition of one parcel without including the other. The only question, in any event, is one of costs. It may be that the plaintiff, in some cases, will not be allowed costs.
In New York, under the old chancery system, there was an express rule of the Court on the subject, which prescribed, in substance, that where several tracts or parcels of land were owned bythe same persons in common, if a separate bill should be filed for the partition of a part thereof only, the share of the complainants might be charged with all the costs; (2 Barb. Ch. Pr. 291; 175th Rule of the Old Court of Chancery of N. Y.) thus, clearly implying that a demurrer would not lie to a complaint, because it sought the partition of only one of several parcels of land held by tenants in common.
There is no more reason, on principle, why a person may not bring a suit to partition one of several parcels of land than there would be in a rule that he should not be permitted to bring ejectment for one of several parcels of land, all of which were held by the same defendant. And it was eminently proper that this suit should be brought as it was. It may and probably will be years before the rights of the contending parties to the 1,500 acres will be settled. And it would, to say the least, be a very great inconvenience to the plaintiffs, and probably to the other owners in common, to be obliged to rest for a long time under the uncertainty of title to which they are subject without a definite boundary line existing between them.
That portion of the complaint relating to the 1,500 acre tract was inserted out of abundant caution, in order that the plaintiffs might not be precluded from claiming their proportion in any after litigation. If it does no good in the complaint, it certainly cannot harm it. And it may be found of benefit in future litigation. At the worst, it can, for the present, be regarded only as surplusage.
The defendants say: " Suppose the lines of the rancho should finally be settled altogether different from and so as to embrace a part only of the land partitioned in this suit?" This supposition is made in connection with the difficulty the defendants find in the partition of the rancho independently of the tract of 1,500 acres. I have but one remark to make on this subject, in addition to what I have already said, and that is, that the supposition of the defendants is wholly inadmissible. It is not supposable, in this case at least, that the lines of the rancho, or that part of the rancho sought to be partitioned, will be settled in any manner different from the lines as claimed in this suit. The question has not been raised as to the boundaries of the rancho either in the complaint, or in the answer, or at the trial, or inany part of the proceedings, until, without any basis whatever for it, the point is started by the counsel for the defendants in their argument on this appeal. It is barely necessary to suggest, that an argument based on a bare supposition is entitled to no weight. The lines and boundaries of the rancho are fixed--its limits are well known and defined; so far as those limits are concerned there is no open and unsettled question. The authorities cited by the defendants have no application, and I shall not take the trouble to review them. If we are entitled to a partition of the land in question, it is no answer to our application that we may, perhaps, at some future time, ask for the partition of some other and additional tract.
A. M. Crane and Robert Simpson, for Appellants.
Nathaniel Bennett, for Respondents.
John Satterlee, Horace Hawes, S. Heydenfeldt, Crockett & Crittenden, also, for Respondents. The argument of these gentlemen, as also most of that of Mr. Bennett, was addressed to points not considered in the opinion of the Court.
JUDGES: Norton, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
NORTON, Judge
On application by appellants for a modification of the opinion, Norton, J. delivered the opinion of the Court. Field, C. J. concurring.
We are asked to modify our opinion in this case so far as it " confers or may be construed to confer on the Court below any power or authority to ascertain or settle, for the purposes of this partition, the boundaries or extent of the San Lorenzo Rancho."
No modification of the opinion is necessary. The situation of lands in this State is rendered peculiar by the necessity of having patents issued by the United States for all tracts held by private owners and the uncertainty that must in the meantime exist as to the exact boundaries as they may be ultimately fixed in the patent. If any objection to the making of a partition exists in any case on this account, it should be presented in the answer and the necessary facts set forth, whereupon the Court could determine the necessity and its authority to dismiss the complaint or to stay proceedings until the boundaries should be settled by the proceedings instituted to obtain the patent. In the present case, this objection was not raised to proceeding in the action, and the fact that there were any proceedings pending for a patent only appears incidentally. After this case is returned to the Court below, either party will have an opportunity to apply to that Court for leave to amend the pleadings, or by a petition to present the necessary facts to show the propriety of a stay of proceedings, and if granted, then upon the boundaries becoming fixed by the proceedings before the United States tribunals, to bring the proper facts into the case by amendment or supplementary pleadings.
The application to modify the opinion is, therefore, denied.