Opinion
Rehearing Denied.
Appeal from a judgment of the Superior Court of Fresno County and from an order denying a new trial. M. K. Harris, Judge.
COUNSEL:
J. C. Black, for Appellant.
W. C. Graves, for Respondent.
JUDGES: In Bank. McFarland, J. Harrison, J., Garoutte, J., Temple, J., and Henshaw, J., concurred. Van Fleet, J., deeming himself disqualified, did not participate.
OPINION
McFARLAND, Judge
[41 P. 1039] This is an action of ejectment to recover certain parcels of land containing about thirteen thousand acres. The superior court rendered judgment for defendants and plaintiff appeals.
We see no reason for reversing the judgment or the order denying appellant's motion for a new trial. We pass over respondents' contentions that the title to the land passed to Charles McLaughlin by the deed to him from Burr, Shotwell, and the decedent, Thomas Hildreth; that all demands of the estate of said Hildreth against respondents were compromised with William Dunphy, administrator of said estate, with the approval of the probate court; and that, even viewing the deed to McLaughlin as a mortgage, this action must fail because a mortgagor cannot maintain ejectment against a mortgagee in possession until the debt is paid. There are other points made by respondents which we do not deem it necessary to review. We pass these points and contentions, because in our opinion the appellant is estopped and debarred from the prosecution of this action by the judgment rendered in the action of Kate McLaughlin, executrix of the will of Charles McLaughlin, deceased, against Laura J. Hildreth et al ., to quiet title to the lands involved in the present action. The nature of that action, and the facts concerning it, are fully set forth in the transcript, and it would serve no useful purpose to recite them here.
The judgment and order denying appellant's motion for a new trial are affirmed.