Varni v. Devoto

Partition—Complaint—Demurrer Sustained—A mendmbnt—Dismissal—Appeal.—In an action for partition, after a demurrer has been sustained to the complaint, if plaintiff is entitled to maintain the action, he should have been given an opportunity to amend the complaint before the final dismissal of the action; but if he desired to amend the same, he should have applied to the court for such permission and taken an exception if permission had been denied. In case of his failure to do so, it is too late to make the point for the first time in the appellate court, when nothing appears in the record to show an abuse of discretion.

Id.—Eight of Equitable Owner to Sue.—An action for partition may be maintained by an equitable owner of an undivided interest in the property; and the court erred in sustaining a demurrer to his complaint upon the ground that it did not show a legal title.

Id.—Construction of Code—Estate of Inheritance—Equitable and Legal Demedies.—An equitable estate is an estate of inheritance within the meaning of section 752 of the Code of Civil Procedure; and since equitable and legal remedies may be sought and had in the same ease, under the code, the owner of an equitable title to an undivided interest may sue to establish his right, and to obtain the division of the common estate.

Id.—Possession of Plaintiff not Alleged—Possession of Cotenants. When the complaint alleges possession by the owner of the legal title held in trust for him and of another cotenant joined as a defendant, and does not show an adverse seisin, the possession of the defendants is the possession of the plaintiff, and the complaint is not demurrable because it does not expressly allege that plaintiff is in the possession of the land sought to be partitioned.

Id.—Adverse Possession op Cotenant—Action for Partition not Affected—Rights of Parties Adjustable.—If it be assumed that the complaint shows the adverse possession of a eotenant, that would not affect the action for partition, in which, under section 759 of the Code of Civil Procedure, the rights of all parties, both plaintiff and defendant, may be put in issue and tried therein.

Id.—Express Trust not 'Shown—Husband and Wife—Purchase with Community Property—Title in Wife’s Name—Parties.— Though the trustee of an express trust is vested with the whole estate under section 863 of the Code of Civil Procedure, and while such trust continues, it cannot be enforced in partition; yet a complaint alleging that plaintiff, as husband, purchased an undivided interest with community money, and took the record title in the wife’s name, does not show an express trust within that section, but shows a right of possession in the plaintiff which entitles him to partition against a cotenant; and under the complaint, which states a cause of action also against the wife for a conveyance to which he is entitled from her, she is a proper party defendant.