Opinion
Department One
Appeal from a judgment of the Superior Court of the county of Alameda, and from an order refusing a new trial.
COUNSEL:
C. A. & C. Tuttle, and J. P. Dameron, for Appellant.
W. W. Foote, for Respondent.
JUDGES: McKinstry, J. Ross, J., and McKee, J., concurred.
OPINION
McKINSTRY, Judge
[8 P. 596] It is urged by appellant that the court below did not find on the plea of the Statute of Limitations. The plea is that plaintiff's cause of action is barred by sections 315, 316, 318, and 332 of the Code of Civil Procedure. The finding is as broad and specific as the plea.
The defendant Dameron moved for a nonsuit on the ground that there was no evidence that he was in possession of the demanded premises when the suit was brought, or at any time. Section 379 of the Code of Civil Procedure provides: "In an action to. .. . determine the right to the possession of real property which, at the time of the commencement of the action, is in the possession of a tenant, the landlord may be joined as a party defendant." There was evidence that the defendant Dameron was the landlord of the tenants in possession.
There was evidence that the plaintiff was a corporation de facto .
In this action such evidence was admissible, and established the existence of the corporation as against the defendants.
It is said by counsel for appellant that the vital question in the case is: Is the plaintiff entitled to recover the possession of marsh land which lies between the high and ordinary high tide? It has been adjudicated in the proceeding which resulted in the confirmation of the grant to Peralta, that the Mexican government granted to him the lands herein demanded. It has not been shown to our satisfaction that the Mexican government had no power to make the grant, even if it be conceded that the existence of such power was not determined by the adjudication referred to.
Judgment and order affirmed.