1. By the law of California, one tenant in common of real
property can sue in ejectment and recover the demanded premises
entire as against all parties except his co-tenants and persons
holding under them. But the judgment for the plaintiff in such case
will be in subordination to the rights of his co-tenants.
2. According to the system of pleading and practice in common
law cases which prevails in the courts of California and which has
been adopted by the circuit court of the United States in that
state, a title acquired
Page 68 U. S. 372
by the defendant in ejectment after issue joined in the action
can only be set up by a supplemental answer in the nature of a plea
puis darrein continuance.
Writ of error to the Circuit Court of the United States for the
Northern District of California; the action having been ejectment,
by Johnson against Hardy and wife, to recover a parcel of land in
the City of Oakland, California. Johnson, in his complaint, as a
declaration is there called, alleged a seizin in fee and a right to
the possession of the entire demanded premises. The jury, however,
by special verdict, found that the plaintiff was seized of a
fractional part only; to-wit, of an undivided twentieth interest.
The defendants showed no title in any part, and the court gave
judgment in Johnson's favor for the
entire premises,
"in subordination to the rights of his co-tenants."
On the trial the defendants offered in evidence a deed,
conveying the interest of some of the co-tenants, executed after
issue joined; an issue amounting in fact to the general issue. The
deed was admitted (the question of its admissibility under the
pleadings being reserved), and the jury based one of its findings
upon it. The court, however, finally held the evidence not
competent, and, in entering judgment on the verdict, excluded the
finding made upon its basis.
The questions in this Court were:
1. Whether judgment could properly be given, as it was in favor
of the plaintiff for the entire premises, in subordination to the
rights of his co-tenants.
2. Whether the deed was rightly excluded.
Page 68 U. S. 373
MR. JUSTICE FIELD delivered the opinion of the Court:
This is an action of ejectment for the possession of certain
real property situated in the City of Oakland, in the State of
California. The plaintiff below, the defendant in error in this
Court, alleges in his complaint a seizin in fee and a right to the
possession of the entire premises. The proof established and the
jury found that he was only seized of an undivided twentieth
interest, but the court held that, as the defendants had shown no
title, he was entitled to the possession of the entire premises,
"in subordination," however, "to the rights of his co-tenants," and
directed judgment to be entered in his favor as against the
defendants for the same. The ruling of the court in this particular
constitutes the principal error urged for a reversal of the
judgment.
The ruling was in conformity with the settled law of the state.
Under the allegation of seizin in the complaint, it was sufficient,
as determined by repeated adjudications of the supreme court of the
state, for the plaintiff to establish any interest in the premises
which gave him a right of possession. The action of ejectment
determines no rights but those of present possession; and that one
tenant in common has such rights as against all parties but his
co-tenants, or persons holding under them, is not questioned.
[
Footnote 1]
Page 68 U. S. 374
On the trial, the defendants produced a conveyance of the
interest in the premises of some of the co-tenants of the
plaintiff, executed after issue joined. The evidence was admitted,
subject to the opinion of the court upon its admissibility under
the pleadings, and the jury based one of their findings thereon.
But the court, in directing the judgment to be entered upon the
special verdict, held the evidence inadmissible and excluded the
finding. Its ruling in this particular constitutes the second error
assigned for a reversal of the judgment.
This ruling was correct under the system of pleading and
practice which prevails in the state courts of California and
which, with some slight modifications, has been adopted by the
circuit court of the United States for common law cases. By a
statute of the state, the different forms of action known to the
common law are abolished. The plaintiff is required to state in his
complaint the facts constituting his cause of action in ordinary
and concise language, with a prayer for the relief to which he may
deem himself entitled. To the complaint the defendant must answer
either by a denial of its allegations or by a statement of any new
matter constituting a defense. The fictions of the action of
ejectment at common law have no existence. The names of the real
claimants and defendants must appear in the pleadings. The
complaint must allege the possession or seizin of the premises or
of some estate therein by the plaintiff on some day to be stated,
the subsequent entry of the defendant thereon, and his withholding
the same from the plaintiff. A denial of its allegations puts in
issue the title of the plaintiff at the date alleged, or at least
his title at the commencement of the action. [
Footnote 2] Any title acquired subsequent to the
issue thus joined must be set up by a supplemental answer in the
nature of a plea
puis darrein continuance. No permission
to file such supplemental answer was applied for, and there was no
error in excluding the title subsequently acquired under the
pleadings as they stood.
Judgment affirmed.
[
Footnote 1]
See Stark v. Barrett, 15 Cal. 371;
Touchard v.
Crow, 20
id. 162;
Mahoney v. Van Winkle, 21
id. 583.
[
Footnote 2]
Yount v. Howell, 14 Cal. 468.
