Hardy v. Johnson,
68 U.S. 371 (1863)

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U.S. Supreme Court

Hardy v. Johnson, 68 U.S. 1 Wall. 371 371 (1863)

Hardy v. Johnson

68 U.S. (1 Wall.) 371


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

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